Sunday, December 31, 2006

Ind. Law - The Indiana Law Year in Review

Here it is, the Indiana law year in reivew - highlights from the December 2005 and the Jan.-Dec. 2006 entries to the ILB. This is the draft I submitted to Res Gestae as my first column for the New Year, and it will appear in the combined Jan.-Feb. 2007 issue.

If you see an interesting item and would like to go back to the original ILB entry, use the "Archives by Month" links in the right-hand column to pull up the entries from the month in question, then scroll to the detailed entry.

“To elaborate . . .”A monthly column by Marcia J. OddiThe Year in Review (Dec. 2005 through Dec. 2006)as seen from the Indiana Law Blog

The Indiana Law Blog compiles law-related stories from around the State. The day’s Indiana appellate decisions are summarized, along with federal trial and 7th Circuit decisions of interest, and an occasional state trial court ruling. Last year, for my first end-of-the-year Res Gestae column, I went through the several hundred Indiana Law Blog entries for each month from January through November 2005 and pulled out a kind of selective (and purely arbitrary) overview of the year 2005 in Indiana law. Take a look back now at the last two entries from November 2005:

Nov. 30th - Federal Judge David Hamilton ruled today, in Hinrichs, et al. v. Bosma, that “plaintiffs are entitled to a permanent injunction against [Speaker Bosma] in his official capacity barring him from permitting sectarian prayer as part of the official proceedings of the Indiana House of Representatives.”

Picking up with December 2005 and moving on through December 2006, what follows is the year 2006 in review, as seen from the Indiana Law Blog.

December 2005

Dec. 1st - "State justices decide jailed defendants must be tried within 6 months of arrest" reported the Fort Wayne Journal Gazette, citing “an Indiana Supreme Court ruling from late August that essentially put a new twist on an old law.” The ruling is State ex rel. Michael Bramley v. Tipton Circuit Court, a "published order granting permanent writ of mandamus," entered 8/26/05.

Dec. 4th - Supreme Court issues unauthorized practice decision against woman providing "immigration services" in a 24-page per curiam ruling "On Petition To Enjoin The Unauthorized Practice Of Law," in State of Indiana ex rel. Indiana State Bar Assoc., et al v. Ludy Diaz. According to an Indianapolis Star story dated Dec. 9th, “To the people of Mexico and other Latin American countries, notario publico means highly qualified lawyer. But Diaz, whose legal training consists mainly of attending immigration law seminars, did too little to set the record straight, according to the Indiana Supreme Court."

Friday, December 29, 2006

Ind. Decisions - Court of Appeals issues 1 today (and 20 NFP)

For publication opinions today (1):

Anthony J. Sabo v. Cindy K. Sabo - "Upon sifting through the evidence presented by Mother and Father, the court decided it would be in A.S.’s best interests to live with her mother during the school year. We cannot say that conclusion is clearly against the logic and effect of the facts and circumstances before the trial court, or the reasonable inferences drawn therefrom."

Ind. Gov't. - Wish you were someplace else?

When the recently elected Tippecanoe County assessor posted complaints about other county officials on MySpace.com, she thought only her friends could read them.

But just how private can anything on the Internet be? Samantha Steele was asking herself that very question after learning that an anonymous person had sent a copy of her remarks to the Journal & Courier.

After attending a meeting of the county commissioners on Monday, Steele wrote on MySpace -- a personal Web site where guests can post notes, photos and other information -- that she had learned three things:

"1. I need coffee before these meetings. 2. They don't 'really' do business at the meetings -- it's all been decided, and they go (through) the motions. 3. I have a lot of work ahead of me."

The story also has an interesting discussion of property value trending.

Ind. Courts - "Effort to help troubled teens led by judge in Porter County"

The NWI Times editorializes today about Porter County Judge Mary Harper, who was the subject of a story Wednesday (see ILBentry here) reporting that a program that screens juvenile offenders in Porter County for mental illness is to be tested statewide. From the Times today:

Getting help for troubled teens is the goal of a new program in Porter County. That program may soon be used throughout Indiana.

Porter Circuit Court Judge Mary Harper gets the credit. She will serve as advisory board chairperson for the Juvenile Health Screening and Assessment Pilot Project. The three-year effort is being coordinated by the Indiana Bar Association in response to recommendations stemming from a summit on the issue in 2004.

The program’s goal is to identify, treat and track youth with mental illness in the juvenile justice system.

"We really need to have some type of tool to determine if there are underlying causes for their (youth offenders) conduct," Harper said.

Porter County’s program was modeled after a successful program in Pennsylvania. Officials there found that 71 percent of juveniles screened had some level of mental illness or distress.

In Porter County, 16 percent of juveniles in the system this year were found to have mental health issues.

Harper is to be commended, along with other involved officials, for finding the program, bringing it to Porter County and working to share it throughout the state.

Troubled young people will be the direct beneficiaries. And their communities also will be served.

Meanwhile, many local governmental entities, including Batesville and Evansville, were receiving local complaints about the effect of the unregulated smoke, and beginning efforts to enact local ordinances. One that the ILB has followed has been in Northwest Indiana.

At the same time, U.S. EPA, which has not acted, has recently begun giving indications that it may act, albeit very slowly.

Today, Lauri Havey Keagle, who has been covering the story for the NWI Times, reports:

PORTAGE | A Northwestern Indiana Regional Planning Commission subcommittee examining outdoor wood-burning furnaces is planning to push the state to regulate the devices.

The group also plans to ask the EMPC to encourage the full NIRPC board to petition IDEM -- and possibly state legislators -- to enact regulations on the devices.

"We have to hold IDEM accountable and IDEM has to ask the EPA to do their jobs efficiently and effectively," said Conni Clay of the Save the Dunes Council, who sits on the subcommittee. It is drafting a sample ordinance to regulate the devices for Lake, Porter and LaPorte counties and their municipalities.

Outdoor furnaces burn wood to heat water or air that is pumped back into the home. When the units burn things other than recommended fuel -- generally clean, dry wood -- they can emit thick, black smoke at ground level.

Currently, there are no regulations for the devices at the local, state or national level.

The Indiana Environmental Quality Service Council met in November and discussed a plan by the U.S. Environmental Protection Agency, which was expected to be unveiled Dec. 15. But subcommittee members said Thursday the plan is now expected to be released Jan. 22, or possibly later.

The EPA plan is expected to include two phases: a model state ordinance recommending emissions standards and suggestions to manufacturers to create cleaner-operating products. Any action taken by the states or manufacturers would be voluntary.

IDEM requested public comments on a proposal for rules governing outdoor furnaces last year, but the state has yet to take any action.

"Despite what the EPA is doing at this time, we are continuing to move forward with a draft ordinance to protect the environment and the residents of Northwest Indiana," said Emerson Delaney, a Chesterton resident who owns one of the furnaces and serves on the subcommittee.

Ind. Decisions - "Sentence reversed in infant death"

The Evansville woman serving an eight-year prison term for giving her infant a lethal dose of cold medicine will get a new sentencing hearing, the Indiana Court of Appeals has ruled.

Applying a U.S. Supreme Court precedent that has created a ripple effect in criminal cases nationwide, the appeals court found a technical violation in the way Misty Marie Howell was sentenced after pleading guilty to reckless homicide.

Kyle Howell, a 7-week-old infant, was found dead Feb. 20, 2004. His mother admitted she gave him an overdose of Dimetapp, which contains the drug pseudoephedrine.

The appeals court found the judge incorrectly used the victim's age as an aggravating factor, justifying a longer sentence, when that detail had not been officially established by a jury or by Howell herself under oath.

Vanderburgh County prosecutors disagree with the appeals court's decision and are considering whether to ask the state attorney general to appeal it up to the Indiana Supreme Court. * * *

In its 15-page decision Wednesday, the appeals court relied on a courtroom transcript of Howell's testimony at her guilty-plea hearing, in which the judge read the indictment to her - reciting the allegation, and the fact that Kyle Howell was 7 weeks old and was in Misty Howell's care. "Do you understand that charge?" Pigman asked Howell, according to the transcript. Howell replied with a one-word answer: yes.

"However, Howell did not admit to the facts contained in the trial court's question. Rather, Howell just admitted that she understood the charge," appeals court Judge John Sharpnack wrote in the decision. That cannot be used to justify using Kyle's age as an aggravating factor requiring a longer sentence, Sharpnack added. Appeals court Chief Judge James Kirsch and Judge Paul Mathias concurred, sending the case back to Pigman to resentence Howell.

"If it is decided that an appeal (to the Indiana Supreme Court) will not be made, then a new sentencing hearing will take place," Farr said. The decision whether to appeal is up to the attorney general's office.

The appeals court's ruling stems from a landmark U.S. Supreme Court decision in 2004: Blakely vs. Washington. It did away with the longstanding practice of judges lengthening sentences after finding aggravating factors exist, such as the victim's age and the defendant's position of trust over the victim.

The Supreme Court declared that only juries, not judges, could find aggravating factors, unless the defendant admits them. The only exception is the defendant's criminal record; a judge still can cite that without a jury finding it.

Ind. Decisions - Another interesting non-Indiana 7th Circuit ruling

This putative class action alleges
the Coca-Cola Company (“Coke”) deceived Diet Coke®
consumers in Illinois by failing to disclose that fountain
Diet Coke and bottled Diet Coke are not the same product.
Fountain Diet Coke contains a blend of the sweeteners
aspartame and saccharin; bottled Diet Coke is sweetened
only with aspartame. The plaintiff’s lawyers, on behalf
of a prior named class representative and a class of all
Illinois purchasers of fountain Diet Coke from March 12,
1999 forward, initially filed the lawsuit in Illinois state
court alleging that Coke violated the Illinois Consumer
Fraud and Deceptive Practices Act (“ICFA”) and was unjustly enriched. Coke removed the lawsuit to federal
court, defeated class certification, and eventually offered
a substituted named plaintiff, Carol Oshana, a judgment
of $650, which she accepted. Oshana reserved the right
to challenge on appeal the district court’s jurisdiction
and the order denying class certification. We affirm.

They’re everywhere. * * * But come Tuesday, one place cell phones won’t be allowed is inside Allen County’s courts. People won’t even be allowed to take phones, pagers or other electronic devices, into the buildings. The only exceptions to the new rule will be for attorneys with court-issued identification cards and county employees with their proper county identification badges. * * *

Unlike other court systems, such as the local federal building, sheriff’s deputies will not hold anyone’s cell phones at the front security station. They will tell people to put them in their cars or they will not be allowed in. That also applies to people who are dropped off for court. * * *

The ban will not only affect people coming to court hearings, but also groups that work daily within the system, such as the Fort Wayne Police Department’s Victim Assistance; the state Department of Child Protective Services; and Court Appointed Special Advocates, also known as CASA. * * *

Another side effect of the ban will be that visitors will no longer be allowed to take pictures of the Courthouse. Commercial photographers will have to schedule photos after the Courthouse is closed for the day.

Media cameras will be the only cameras allowed inside the buildings during business hours, Gull said.

Though court security doesn’t anticipate any major problems with implementing the ban Tuesday, Gull asks people to be patient.

“Those that are complying with the ban are going to be in line trying to get through security with those who are aren’t aware of the ban, and those people are just going to have to be patient,” she said, “and recognize it’s a security measure and protection measure that we would hope people appreciate.”

Andy Grimm of the Gary Post-Tribunereports today in a story that begins:

CROWN POINT -- A state ethics commission cautioned Lake Superior Court Judge Julie Cantrell for improperly using money from driving school fees to give her staff $20,700 in salary bonuses.

Breaking with the panel's usual practices, a spokeswoman for the Commission on Judicial Qualifications issued a public statement about an investigation into Cantrell's office, a response to statements by Cantrell last month that said the commission "dismissed" complaints against her.

"Short of filing charges (the commission) can express a private caution. (A caution) is an expression of the commission's finding that the complaint was not unfounded or groundless," said Meg Babcock, counsel for the commission.

"Typically that is a private communication. Because Judge Cantrell stated publicly the complaint was dismissed, I determined it was appropriate to speak publicly to correct the impression made by her public statement."

Cantrell referred questions to her attorney, Terry Smith, who said a letter from the commission said the case was "dismissed with caution."

The reference is apparently to this story reported in the Nov. 4, 2006 Post-Tribune, that began:

Federal and state investigators have been looking at records about Lake Superior Court Judge Julie Cantrell's driving school.

The judge says both groups have given her program a clean bill of health after addressing allegations that money from the court-run program for traffic offenders had been misappropriated.

"I received a fax (Friday) afternoon from the state Commission on Judicial Qualifications," Cantrell said. "They said they had looked into it, and they had dismissed the complaint."

The fax from the state commission was not made available to the Post-Tribune.

Thursday, December 28, 2006

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

Adoption of J.E.H. and W.D.H.: Melissa Hefner v. Wanda Hefner - "We conclude that IC 31-19-9-1 (a) is not ambiguous. Its clear language provides that a trial court may not grant a petition for adoption of a child more than fourteen years of age unless the child has executed a written consent to the adoption. Here, J.E.H. was fourteen years of age at the time of the hearing on Melissa’s petition for adoption—the time at which the trial court was called upon to grant the petition. Because J.E.H. had not executed a written consent, the trial court could not grant the petition. The trial court did not err in denying the petition."

Donald W. Holtz, Jr. v. State of Indiana - "In sum, we need not evaluate the performance of Holtz’s trial counsel because the evidence at issue was merely cumulative of the other evidence presented by the State. See Blanchard v. State, 802 N.E.2d 14, 30 (Ind. Ct. App. 2004) (admission of evidence that is merely cumulative is not grounds for reversal). We conclude that Holtz suffered no prejudice, and therefore, his claim must fail. Affirmed."

James C. Purcell v. Old National Bank (NFP) - "Because the Subordination Agreement raises matters outside the scope of Purcell’s prima facie case and operates, instead, to bar Purcell’s recovery, it is an affirmative defense. Because the Subordination Agreement was not included in the Bank’s answer, it is waived and cannot be the basis for the Bank’s motion for summary judgment. The trial court erred in denying Purcell’s motion to strike and granting the Bank’s motion for summary judgment. Reversed and Remanded."

Express Manufacturing LLC v. Cox II Corporation (NFP) - "The purchase agreement unambiguously provides that the Express was liable for the business personal property taxes assessed in 2002, but due in 2003. The trial court correctly ruled that Express failed to provide financial statements to Cox II as required by the purchase agreement. Last, the award of attorney fees was correct. Because Cox II prevailed and is entitled to appellate attorney fees by the terms of the purchase agreement, we remand to the trial court for the limited purpose of holding a hearing to determine reasonable appellate attorney’s fees. Affirmed and remanded for determination of appellate fees."

Our Trial Rule 75(A) gives preference to certain counties as the place for a lawsuit to proceed. In this case, the trial court and the Court of Appeals held that because some personal property (orthotic devices and clothing) belonging to a victim of a motor vehicle accident had been damaged, the victim’s home county (the place where the personal property was regularly kept) enjoyed this preferential status. This was an incorrect interpretation of the trial rule and we accordingly reverse the decision of the trial court and the Court of Appeals. * * *

For the reasons discussed supra, Porter County is not a county of preferred venue and the trial court erred in not granting defendant’s motion to transfer the case to a county of preferred venue. We reverse the decision of the trial court.

With today's decision, the majority reinterprets the clear language of this Court's rule in a manner contrary to thirty years of appellate precedent and established custom and practice of Indiana judges and lawyers. Such a major shift of policy, if warranted, should be undertaken by the rule amendment process, not by a judicial opinion in a single case.

Ind. Courts - Changes to be made in Jefferson/Switzerland prosecutor's office

Changes will be coming in the prosecutor's office as Jefferson/Switzerland County Prosecutor-Elect Chad Lewis prepares to take over the job at the end of the year.

Besides personnel changes, such as hiring chief deputy prosecutor D.J. Mote from Marion County, Lewis wants to make the prosecutor's office more efficient. To accomplish this, Lewis said he wants to change some internal policies.

"There are going to be some changes made in the child support side of the office," Lewis said.

At issue is whether Vonder Meulen, who defeated Linkel in the November election, will take the 2nd district seat on the board of commissioners on Jan. 1, 2007 or Jan. 1, 2008.

Linkel maintains he has another year on his term as commissioner because his is a holdover office. He's only served three years of his four-year term.

Vonder Meulen said the law governing commissioner terms requires that a commissioner elected in November assume the office Jan. 1. Franklin County's holdover commissioner office may be the only one in the state of Indiana.

In his suit, Vonder Meulen asked the court to stop Linkel from conducting any business as a commissioner after Dec. 31. Vonder Meulen also wants the court to require Flaspohler to issue a certificate of election for county commissioner, second district, that shows his four-year term begins Jan. 1, 2007.

Flaspohler has already issued a certificate of election that has Vonder Meulen's term beginning Jan. 1, 2008.

The ILB hasn't researched this, but it looks like the situation may be the result of poorly drafted statutory language. Most often, statutory language would provide for a replacement to be elected or appointed to fill the "unexpired term" when the office has been vacated early. Evidently that is not the case here. A similar circumstance may have resulted in Martin County, where the appointed clerk was beaten in the May 2006 primary, but because of the timetable will serve all 2007. It won't be until Jan. 2008, when the new clerk will take over. According to this Sept. 27th ILB entry, here is how messed up it was/is there:

The position of Clerk of the Martin Circuit Court has been a "hold over" office for many, many years. As a result, although elected in November, 2002, Mrs, Christmas' term actually ran from January 1, 2004, through December 31, 2007.

Mr. Hunt was appointed as Clerk Pro Tempore and will serve the remainder of the term to which Debra Christmas was elected during the November 2002 general election. [The General Assembly recently passed a law to put this election back on track, as a result] the person who is elected Clerk this November will serve a three-year term. The term will run from January 1, 2008, through December 31, 2010.

TELL CITY - Ready to trade his judicial robe for private practice, James McEntarfer calls his six years of service as circuit-court judge a “privilege and honor.” Elected in 2000, the 51-year-old will leave office at the end of the week, succeeded on the county bench by Lucy Goffinet.

McEntarfer, who lost his bid for re-election to Goffinet in May’s primary, said he will use the knowledge and insight the job has given him as he returns to the practice of law. He has accepted a position with Fine & Hatfield, one of Evansville’s oldest law firms, and according to McEntarfer, one of the most respected.

Ind. Courts - Fort Wayne attorney suspended for at least 18 months

The Indiana Supreme Court’s Disciplinary Commission suspended a Fort Wayne attorney for at least 18 months beginning in February, finding that he engaged in attorney misconduct.

Charles James Rathburn Jr. was suspended for failing to act with reasonable diligence and promptness, failing to keep a client reasonably informed about a matter and collecting an unreasonable fee or an unreasonable amount for expenses, among other things, according to a ruling from the Indiana Supreme Court issued Thursday.

According to the order, Rathburn failed to answer the commission’s amended complaint or appear for a hearing on the matter

Ind. Decisions - More on Timberlake execution date and process

Updating this entry from Dec. 16 about the Supreme Court's order setting a set a Jan. 19 execution date for the New Albany man who convicted of killing a state trooper, today the Louisville Courier Journal reports, in a story by Harold J. Adams:

Lawyers for a New Albany man scheduled to be put to death next month for the 1993 murder of an Indiana state trooper have asked a federal court to delay the execution.

The filing asks the U.S. District Court in Indianapolis to consider whether Norman Timberlake, 59, is insane and therefore does not qualify for the death penalty.

One legal expert said yesterday he believes there's a good chance the court will grant a stay of the Jan. 19 execution, and that it could then be years before another date is set.

"I think it's beginning to look unlikely now" that the execution will be carried out next month, said Joseph Hoffman, a nationally recognized death penalty expert at the Indiana University Law School.

U.S. District Judge Richard Young gave the state until tomorrow to respond to the request for a stay and a hearing on the insanity claim.

The issue presented to the federal court is the same one rejected by the Indiana Supreme Court earlier this month when it set the execution date. By a 3-2 majority, the court on Dec. 15 denied Timberlake's request to hold a sanity hearing in Marion Superior Court.

The court decided Timberlake showed no reasonable possibility that he would meet the U.S. Supreme Court's so-called Ford standard of insanity.

The Ford standard established that persons are insane -- and therefore shouldn't be executed -- if they are "unaware of the punishment they are about to suffer and why they are to suffer it."

Timberlake, despite being "severely mentally ill," understands that he is to be executed for the trooper's murder, the Indiana court said in its ruling.

It was the third time the justices have rejected an appeal by Timberlake and upheld his death sentence. The court said Timberlake had "exhausted the judicial review to which he is entitled as a matter of right."

The Indianapolis Star published a letter to the editor today on Indiana's lethal injection process. Some quotes:

In recent days a botched execution caused the governor of Florida to halt executions there and order an investigation into Florida's lethal injection process; a federal court in California found that state's lethal injection process violates the U.S. Constitution's ban on cruel and unusual punishment, effectively imposing a moratorium; and Maryland's highest court ordered that state to open its lethal injection protocols for public scrutiny. These developments follow a study that found some of those executed by lethal injection were probably subjected to excruciating pain.

Indiana scheduled Norman Timberlake's execution for Jan. 19. Indiana uses the same lethal injection process as other states but so far does not seem concerned that it may be torturing its citizens to death. Lethal injection's promises of a humane death are proving false.

The Indiana Information Center on the Abolition of Capital Punishment calls on Gov. Daniels to immediately halt executions and appoint an independent commission to investigate Indiana's lethal injection process.

Law - "Ohio Supreme Court reprimands Governor Taft"

Updating this ILB entry from April 11, 2006, headlined "Ohio Governor may lose law license," the APreports today:

COLUMBUS, Ohio – The Ohio Supreme Court on Wednesday publicly reprimanded Gov. Bob Taft for his ethics violations in office, a black mark that will stay on his permanent record as an attorney.

Taft, a Republican and great-grandson of President William Howard Taft, pleaded no contest in 2005 to failing to report golf outings and other gifts and was fined $4,000.

He could not seek re-election because of term limits and leaves office in less than two weeks. He is being replaced by a Democrat, Ted Strickland.

The Office of Disciplinary Counsel, an arm of the state Supreme Court, said in April that Taft violated Ohio’s code of professional conduct for lawyers. Taft later signed an agreement admitting the violation.

The justices agreed by a vote of 6-0 Wednesday with a recommendation from the Board of Commissioners on Grievances and Discipline to issue the public reprimand. The court could have rejected the recommendation or ordered a stronger punishment.

Steven D. Halfhill worked as a
third-grade teacher for the Northeast School Corporation
(Northeast) in Sullivan County, Indiana during the 2001-
2002 and 2002-2003 school years. Northeast elected not
to renew his teaching contract for the 2003-2004 school
year because of four incidents in which Halfhill made
physical contact with students when disciplining them.
Halfhill sued, alleging that Northeast violated his procedural
due process rights, in violation of 42 U.S.C. § 1983,
and breached his employment contract, in violation of
state law. The district court granted Northeast’s motion
for summary judgment and denied Halfhill’s cross-motion for summary judgment. Halfhill appeals both rulings. For
the following reasons, we affirm.

Now for the two other interesting decisions, which have the potential for Indiana application.

A jury found for all defendants
in this suit under 42 U.S.C. §1983. Benjamin Pruitt,
the plaintiff, does not contest the accuracy of the instructions
or any of the district judge’s rulings admitting or
excluding evidence. What he does contend is that the
judge should have recruited a lawyer for him. See 28
U.S.C. §1915(e)(1). Judges do not “appoint” counsel for
indigent parties in civil litigation. See Mallard v. United
States District Court, 490 U.S. 296 (1989). Still, many
members of the bar are willing to take cases that federal
judges identify as worthy of legal assistance pro bono
publico. Because §1915(e)(1) does not give anyone an entitlement to such representation, however, or even to
the benefit of having a judge play recruiting officer, we
have held that a district judge’s decision to allow private
lawyers to decide whether to take any given case is subject
to deferential review. [cites omitted]. Pruitt
insists that the district judge abused his discretion in
declining to recruit a lawyer for him.

The rejection of a per se rule
“if trial, then counsel” [by the SCOTUS] in Middendorf and Argersinger and
Lassiter means that it would be imprudent for this
circuit to create such a rule under §1915(e)(1), which does
not prescribe how district judges exercise their discretion.

[Judge Posner, in a dissent starting on p. 8 and continuing through p. 15, writes:] I am suggesting only
that a judge who has ordered a jury trial should request
a lawyer for a prisoner who plainly lacks the educational
or vocational background that would enable him to
conduct such a trial with minimum competence. To insist
that someone with a sixth-grade education, and nothing
to suggest forensic competence beyond what so modest an
educational attainment implies, conduct a jury trial
without a lawyer makes a travesty of the Seventh Amendment.

The cases that reject a right to counsel in civil cases,
such as Lassiter v. Department of Social Services, 452 U.S.
18 (1981), are inapposite. (Nor can those cases be read
as holding that every civil litigant is capable of conducting
a trial without the assistance of counsel. That would
be absurd, as well as inconsistent with section 1915(e)(1).)
Pruitt claims no such right. He is not asking the government
to pay for a lawyer for him; he is merely asking
the district judge to help him find a volunteer.

After being elected Mayor
of Oak Lawn, Illinois, in 2005, David Heilmann appointed
a new administrative hearing officer for the
Village. The hearing officer’s post is equivalent to what
other states would call a city judge or justice of the
peace: the hearing officer adjudicates disputes under the
municipal code. Michael Walsh, who held the post between
2000 and 2005, contends in this suit under 42
U.S.C. §1983 that Heilmann replaced him because Walsh
had backed the loser in the election, and Heilmann
wanted to put his own supporters in plum positions. According to Walsh, this violated the first amendment,
as applied to political patronage in Elrod v. Burns, 427
U.S. 347 (1976), and its successors. But the district
court dismissed the complaint after concluding that “administrative
hearing officer” is the sort of position for
which politics is a permissible consideration. * * *

Should the Village go hard or easy on homeowners
who don’t trim their hedges, mow their lawns, or rake
their leaves in the fall? What about people who refuse to
shovel their walks when snow falls? Or who paint their
houses puce? Or fail to end a nonconforming use when
a zoning variance lapses? What should be done about
people who leave rusting hulks in their driveways, put
neon signs in residential windows, or keep 500 cats? The
Mayor and Police Chief won’t decide these matters; the
administrative hearing officer will, by choosing levels of
sanctions. Yet local political careers may turn on the
answers; village mayors who can’t keep neighborhoods
looking neat and tidy will not last long in office. (Even a
Mayor of Chicago once discovered that too much snow is
fatal to a political career, and elsewhere in the Midwest
the success of the fall leaf-removal campaign is the
standard by which the people evaluate their mayors.* * *

This is one reason why Andrew Jackson campaigned for
making judicial posts elective and why most states to this
day allow the voters a say in who holds judicial office. If
the “hearing officer” could be relabeled a “judge” and
made the subject of election, the first amendment does
not block an elected official from appointing someone
who shares his view about enforcement priorities. Just
as crackdowns on drunk driving require the cooperation
of the state judiciary, crackdowns on unkempt lawns and
free-roaming dogs may require the cooperation of an
administrative hearing officer. Neither the judge nor the hearing officer operates in a zone where decisions are
mechanical. That’s why we held in Kurowski v. Krajewski,
848 F.2d 767, 770 (7th Cir. 1988), that politics is a permissible
consideration for judicial positions (even those
held for just a short time); the same is true of hearing
officers who possess discretion over which laws receive
how much enforcement. * * *

If the people are to choose policy at the polls, the representatives
they elect must be able to make enough changes
in the bureaucracy to put the winning side’s program
into effect rather than be frustrated by a permanent
officialdom with its own ideas about governance. Walsh’s
sponsors may return to office some day, and then it is they
who will see the wisdom of allowing change in the positions
where discretion is reposed.

Wednesday, December 27, 2006

Law - Federal judge rules on wine shipping into Kentucky

LOUISVILLE - Out-of-state wineries can ship their wares into Kentucky, even if a customer buys the wines online or over the phone, a federal judge ruled Tuesday.

The ruling by U.S. District Judge Charles R. Simpson III upholds a state law set to take effect in January, but eliminates the requirement that someone purchase the wine in person before it is shipped.

The ruling came in a lawsuit filed by Cherry Hill Vineyards, an Oregon winery, which claimed Kentucky's law violated the Commerce Clause of the U.S. Constitution by giving preference to Kentucky businesses over out-of-state merchants.

The ruling comes four months after Simpson struck down the provision requiring any wine to be purchased in state, then shipped.

Cherry Hill Winery challenged the new state law on four grounds: that the provision limiting shipments to wineries that produce less than 50,000 gallons a year unfairly protects Kentucky's small wineries; that limiting shipments to two cases at a time favors local wineries; requiring wine purchases to be made in-person discriminates against out-of-state businesses; and that the creation of the Kentucky Grape and Wine Council leads to Kentucky businesses being treated differently than out-of-state businesses.

Cherry Hill's attorney, J. Alex Tanford, an Indiana University law professor, said the ruling will open the door to small wineries that sell high-end wines to begin doing business in Kentucky, not the mass-produced, $10-a-bottle wine makers.

"Those are the wineries that will take the gamble to see if they can sell wine in Kentucky," Tanford said.

A federal appeals court upheld a ruling Tuesday that protects the Indianapolis company's patent on its top-selling drug, Zyprexa, which last year generated $4.2 billion in sales.

The ruling will keep generic pharmaceutical companies at bay until 2011 -- something Lilly wasn't able to do in 2000, when Barr Laboratories broke the company's patent on Prozac three years early. * * *

The case stems from a patent challenge by generic drug maker Zenith Goldline Pharmaceuticals, which applied in 2001 to sell a generic version of Zyprexa. Lilly sued Zenith and two other generic drug makers, Dr. Reddy's Laboratories and Teva Pharmaceutical Industries.

The companies argued that Lilly's patent was no longer valid because discovery of Zyprexa's molecular structure was obvious and a previous Lilly patent had covered it.

Judge Richard L. Young, of U.S. District Court for the Southern District of Indiana, sided with Lilly in 2005. The companies then appealed to the U.S. Court of Appeals for the Federal Circuit in Washington, D.C.

Stuart Sender, an attorney for Dr. Reddy's Laboratories, said he didn't know whether the companies would appeal to the U.S. Supreme Court. But even if they do, A.G. Edwards & Sons analyst Joe Tooley doubts the earlier ruling will be overturned. "There's a low probability that the Supreme Court would take a case like this," he said.

A new state law that takes effect Monday prohibits the transmission of unsolicited fax ads and allows the attorney general's office to recover civil penalties up to $1,500 per violation.

Under another new law effective Jan. 1, motorists will be able to purchase a new state license plate featuring the American flag and the words "In God We Trust."

Most new laws passed by the General Assembly each year take effect immediately upon the governor's signature or on July 1. But there are usually a handful that go into action on Jan. 1. * * *

The [fax] law mirrors a federal one and allows people or entities to send unsolicited faxes to individuals and businesses with whom they have an existing business relationship for up to 18 months after a transaction.

Staci Schneider, a spokeswoman for Carter's office, said a state law enables people to get into court quickly to pursue their claims. Federal courts are often focused on more pressing matters, which can mean delays, she noted.

Unlike Indiana's "do not call" law, which prohibits most telemarketers from calling Indiana residents registered on a no-call list, the fax law has no signup. Individuals and businesses are simply prohibited from sending unsolicited fax ads to anyone who is not exempt under the law. * * *

Another new law affects businesses.

Starting Monday, those that collect sales taxes will have to renew their state retail merchant certificates every two years. Those found to be delinquent in paying their sales taxes will be denied renewal, and businesses that continue to operate without a certificate could be charged with a class B misdemeanor and face up to 180 days in jail and a $1,000 fine.

Previously, businesses registered just once and certificates were good for the life of the business. Department of Revenue Commissioner John Eckart said the new law gives the state added leverage to encourage businesses to pay on time and in full.

"Registration for those businesses who are current in their sales-tax payments is automatic and at no cost," Eckart said. "However, business owners who are delinquent could find themselves facing some serious consequences."

The state collects more than $5 billion in annual revenue from the sales tax.

This is the first I've heard of the sales tax change. From the story, it is not clear when the two years starts - is it two years after the law goes into operation, meaning everyone who now has a state retail merchant certificates will have to renew it two years from Monday?

[Updated 12-28-06] More on tax change via the ISBA website. The changes are part of SEA 362 from 2006.

Ind. Decisions - Court of Appeals issues 8 today (and 13 NFP)

For publication opinions today (8):

Sherry Thomison v. IK Indy, Inc. - "We conclude that the trial court had personal jurisdiction over Thomison. See e.g. Munster, 829 N.E.2d at 63 (citing Boczar as holding that “failure to follow up delivery of a complaint and summons under Trial Rule 4.1(A)(3) with mailing of a summons under Trial Rule 4.1(B) does not constitute ineffective service of process if the subject of the summons does not dispute actually having received the complaint and summons” and holding that the failure to mail a copy of the summons as required by Ind. Trial Rule 4.1(B) was not fatal to plaintiff’s attempt to serve defendant when defendant confirmed he had received complaint and summons)."

Jill Mackey v. Estate of Meid Creighton Mackey - "We conclude that Jill did not have an adequate opportunity to prepare and present evidence regarding the value of the marital estate and the value of marital property that she received. Consequently, we must reverse the trial court’s order."

Suzanne Swinehart and Virginia Hartman bring this interlocutory appeal following the trial court’s denial of their motion for summary judgment. We address a single dispositive issue on review, namely, whether communications made in the course of official proceedings brought under the antiharassment policies of The Trustees of Purdue University (“Purdue”) are protected by an absolute privilege. We reverse. * * *

Thus, we hold that an absolute privilege is essential to protect the integrity of the judicial functions embodied by the antiharassment proceeding. As such, Keri cannot maintain an action for defamation against Swinehart and Hartman based on the Purdue complaints, and Swinehart and Hartman are entitled to summary judgment. Reversed.

Brian L. Bennett v. Carole Broderick - "In sum, we conclude that on June 20, 2005, Broderick and Bennett entered into a binding contract for the lease of her rental property. Bennett accepted Broderick’s offer to lease the property when he executed the lease. And Bennett’s delivery of a check for the security deposit, even though postdated, met the term of the lease requiring a security deposit to be paid upon execution of the lease and constituted payment of that amount. Broderick had no right to rely on the opinion of a teller employed by the depositary bank that Bennett’s check would not be honored by his bank, the payor bank. Thus, Broderick’s repudiation of the lease in late July was a breach of the lease."

Environment - More on: US EPA accuses local woman of failing to disclose possible lead-paint hazards to tenants and buyers

Updating this ILB entry from July 28, 2006, that quoted an Indianapolis Star story that began "The U.S. Environmental Protection Agency has accused a Hamilton County woman of failing to disclose possible lead-paint hazards to tenants and buyers of several Indianapolis properties," yesterday the Star published this story:

An Indianapolis landlord faces a possible $52,724 penalty from the U.S. Environmental Protection Agency over lead-based paint.

“(EPA) has filed a 54-count complaint against Frank Davis for failing to warn tenants or buyers of 10 houses and apartment buildings that their homes may contain lead-based paint hazards,” the agency said in a news release.

Landlords and those who sell housing built before 1978 are required to provide “lead-paint hazard information,” the EPA said.

Lead, including exposure to peeling lead paint, can cause learning disabilities and other health problems in young children.

Here is an EPA site detailing the requirement, which has been in effect for several years.

From a story by Tania E. Lopez in today's Indianapolis Star that begins:

Felix, a Carmel resident, was appointed last week out of a pool of seven candidates and is expected to take the bench Monday.

He will be responsible for hearing mostly traffic and misdemeanor cases, which is a contrast from what he's used to handling at work.

As deputy prosecutor, Felix was involved in the 1998 case of William French, who was convicted in the beating of his wife with a rubber mallet and sentenced to 35 years in prison.

"Nowadays, I'm going to be listening to arguments," said Felix, who is accustomed to making his arguments in court. "I'm going to be very neutral and detached from the different positions and try to remain as impartial as I can."

Felix said he decided to throw his name in for consideration for the City Court judge position because he wanted to be more involved in Carmel. "I wanted to establish more of a commitment to my community," he said.

In May, Felix lost the Republican primary for Hamilton County prosecutor to incumbent Sonia Leerkamp.

This story from Monday's Indianapolis Star reports "Harrison County Commissioners violated the state's Open Door law." According to Karen Davis, the state's public access counselor, when the commissioners "called a meeting to address a Republican Party official's election concerns without notifying the public," they violated the state's Open Door law. The story continues:

Officials should have canceled the Nov. 3 session and reposted notification of it to allow for the required 48 hours' notice, said [Ms. Davis].

At issue was the commissioners' handling of a meeting that they called to respond to county Republican Party Chairman Larry Shickles' written request to inspect and obtain a copy of a surveillance videotape from the courthouse.

Shickles wanted to review the tape because he said it showed Shawn Donahue, a Democratic Party official and county deputy prosecutor, entering the courthouse after hours and spending a few minutes in a second-floor office.

Donahue said he had used a mechanical paper folder to fold some personal papers, and he denied having any contact with ballots and other items in the county clerk's office.

Corydon lawyer Marian Pearcy filed a complaint with the public access counselor, asserting that the session violated the Open Door law because Shickles' public-record request was not a matter for which a private session can be held.

Here is the Nov. 7, 2006 ILB entry quoting from a Louisville Courier-Journal story that begins: "The chairman of Harrison County's Republican Central Committee has asked the state police to investigate after-hours visits to the county courthouse last week by deputy county prosecutor Shawn Donahue."

Ind. Courts - Program that screens juvenile offenders in Porter County for mental illness to be tested statewide

VALPARAISO, Ind. — A program that screens juvenile offenders in Porter County for mental illness is set to be tested statewide.

The heart of the program is trying to determine if what is causing juveniles’ delinquent behavior.
“We really need to have some type of tool to determine if there are underlying causes for their conduct,” said Porter Circuit Judge Mary Harper, who will serve as advisory board chairwoman for the project.

The Indiana State Bar Association is coordinating the three-year project, which is modeled after a similar program in Pennsylvania. The screening relies on a series of questions that are then evaluated for signs of mental illness.

This year, Porter County referred 207 juvenile offenders — or 16 percent — for mental health assessments this year, said Family Court Supervisor Alison Cox, and 19 of those received treatment.

The most prevalent mental health problem found was depression, followed by bipolar disorder, attention deficit hyperactivity disorder and oppositional defiant disorder.

The advisory board will select counties to take part in the pilot program and develop a protocol for screening, assessing and treating youths with mental health needs, Harper said.

From a brief earlier ILB entry this July: "Porter Circuit Judge Mary Harper was awarded the 2006 Robert J. Kinsey Award for Outstanding Judicial Service and Support to the Children and Youth of Indiana."

Ind. Decisions - Carmel annexation efforts awaiting Supreme Court

The Northside Topics today has a review headed "Topics reviews top '06 stories." Among the stories:

The fate of Home Place and southwest Clay Township is still undecided as both sides wait for an Indiana Supreme Court ruling.

In May, Hamilton County Superior Court 3 Judge William Hughes ruled against the city of Carmel in its attempt to annex southwest Clay Township. Hughes also ruled against Carmel's annexation of Home Place. In both decisions, the judge said Carmel did not demonstrate how it could afford to annex the two areas.

In August, the southwest Clay case was sent to the Indiana Supreme Court. The Home Place case was sent to the Indiana Court of Appeals.

Residents say they don't want to pay more taxes for services they already receive from the township. City officials claim the residents aren't paying their fair share.

The Clay Township decision could affect other annexation cases in Indiana, particularly Fishers' plans to annex homes in the Geist area.

Ind. Courts - Grant County's special Title IV-D Court

From the Marion Chronicle-Tribune, a guest column by Marion attorney John Milford, the domestic relations commissioner for Grant Circuit Court, that begins:

Few parents take pride that they have no real choice but to ask taxpayers for financial assistance. Recognizing that most of these requests result from the failure of the other parent to fulfill their financial duty, last year Grant County government quietly took action designed to relieve the financial burden on taxpayers for the distribution of Temporary Assistance for Needy Families, food stamps and free lunches.

Endorsed by all Grant County judges and Grant County Prosecutor James Luttrull Jr. and initiated and implemented through Grant Circuit Court, last year the Grant County Council approved a plan funded by Federal Title IV-D and state regulations.

This program created a special Title IV-D Court to promote and encourage the establishment of paternity, and creating, modifying and enforcing child support orders.

The commissioner of this court administers, hears cases and makes recommendations which become orders after approval by a judge. Less taxpayer-funded assistance is needed when non-custodial parents fulfill their financial obligation. It makes sense: Taxpayers save $5,200 per year when a $100-per-week TANF check is replaced by a $100 child support payment.

However, the services of this court are not restricted to those receiving TANF or other benefits. Any parent may ask for assistance from the Title IV-D office, located on the ground floor of the Courthouse.

For a mere $25 fee, Title IV-D will establish, modify and enforce all child support cases.

These services include filing income-withholding orders, obtaining and confirming non-custodial employment, asset locating, placing and enforcing liens and seizing of bank accounts and free attorneys for any needed court appearances.

In addition, all child support cases handled by the IV-D office and court result in Grant County receiving increased "incentive payments", an award to Grant County for its collection efforts.

Environment - Possibility of up to six more environmental cases on the U.S. Supreme Court docket this year

Check SCOTUSblog for a list of six more environmental cases that the Supreme Court might add to its docket this term. Their entry describes the questions presented in the six cases, along with links to the solicitor general petitions and acquiescences.

Tuesday, December 26, 2006

Ind. Courts - Divorce mediation services

"Few low-income couples tapping mediation fund: Service could save time and money in divorce/paternity cases" was the title to a story yesterday in the NWI Times, written by Bob Kasarda:

VALPARAISO | Only eight couples this year took advantage of a county program offering free or subsidized divorce mediation services to low-income residents.

Most of the money, which is generated through a $20 fee on all divorce filings, was spent to mediate paternity disputes involving couples who were unmarried when they had children, said Family Court Supervisor Alison Cox.

Sixty-six families received paternity mediation assistance this year through the county's Alternative Dispute Resolution Fund Plan, according to an annual report compiled by Cox.

Porter County magistrates Katherine Forbes and James Johnson, who handle most of the county's divorce cases, said they don't require mediation, but do encourage it.

Successful mediation not only reduces the need for court time, but also provides an opportunity to discuss issues that might not be allowed in a courtroom, Forbes said.

"I can't imagine what the docket would be like without it," Johnson said.

Divorcing couples interested in the mediation assistance program do not have to be referred by the county magistrate or judges, according to Porter Circuit Court Judge Mary Harper.

Individuals can be referred by their attorneys or apply on their own through the family court division at the Porter County Juvenile Probation Department, she said.

Couples with children are eligible for assistance if they fall below 130 percent of the federal poverty index, but exceptions will be considered, according to the program guidelines.

While Cox said the program is capable of handling more divorce referrals, it operated in the red this year, according to the annual report. The program took in $14,360 during 2006 and paid out $15,574, leaving a balance of $26,150.

The family court program relies on the ADR income and Cox said the division is accomplishing a lot with the money. Cox said she and two other staff members in the juvenile probation department respond immediately to requests from the court for mediation in paternity cases.

The trio has a 91 percent success rate in paternity mediation cases, she said.

Cox and the other two staff mediators also provide the service at a fraction of the typical cost, she said. The compensation for staff members amounts to $22 to $25 per hour, she said, as compared to the $95-an-hour compensation rate spelled out in the plan for qualified attorneys.

The family court staff also conducts mediation in child abuse and neglect cases, and has provided mediation training for 13 area attorneys, who in return were required to volunteer their services, Harper said. This effort helped foster a greater awareness and increased use of mediation in the county, she said.

"It worked. It absolutely worked," Harper said.

"Allen County Courts Seek to Help Divorced Parents Work Out Squabbles" was the headline to a story from Indiana's NewsCenter 21 reporter Jeff Neumeyer::

For divorced couples, the holidays can be a source of frustration, especially when it comes to sharing time with their children.

Experts say finding a way to work things out can save your kids a big headache.

One divorced couple we came across, who asked not to be identified, say they shut off their bickering to spare their daughter a lot of pain and suffering.

The man and woman say they've committed to making sure she spends time with the extended families of both dad and mom.

"She's never heard us argue, we all get along very well, we sit together at things. We want to make her growing up the most...you know, the best it can be and the only way it's going to be that way is if we all get along," said the mother.

"I think it's extra important that you don't have a win at all cost attitude, and that you respect the time that your partner needs with your child as well as your own," said the father.

"I'm amazed how much money people are willing to spend to litigate what appears to me to be minuscule issues," said Ft. Wayne psychologist Dr. Stephen Ross, who claims the fact many divorced couples remain at odds, is putting enormous pressure on the government.

NEUMEYER: "The court system in Allen County is launching a new program that's designed to reduce some of the divorce conflicts, especially those around the holidays."

Within the past year, a panel of attorneys and mental health experts has been created to train parenting coordinators, who can mediate parenting time squabbles and other disputes.

"There's some cases where it just doesn't work because the parents are just not willing to give up their anger. I think here in Allen County, the Judges are saying to, to uh, divorced people, you know, you've got to stop bringing these minor things to our court, because they're so costly," said Dr. Ross.

In a society where close to 50 percent of marriages don't make it, the cooperative divorce model holds some hope of keeping the peace.

Ind. Courts - "Daniels appoints Rush County Superior Court Judge"

Indiana Gov. Mitch Daniels announced Thursday the appointment of Brian D. Hill as Rush County Superior Court Judge. He succeeds Judge David Northam, who is resigning to become the Rush Circuit Court Judge effective Jan. 1, 2007.

A lifelong resident of Rush County, Hill has worked in private practice for five years and is currently with Worth & Hill Law Office. Hill received his undergraduate degree from Hanover College and a law degree from Indiana University School of Law – Indianapolis.

“Brian epitomizes the qualities Governor Daniels looks for in a judicial candidate. He is energetic, experienced, dedicated to his community, and is a man of integrity. I’m confident he will make a great judge,” Mark Massa, the governor’s general counsel, said.

Monday, December 25, 2006

Ind. Gov't. - Summing up Kyle Hupfer's career as DNR chief

His name appeared in 68 articles in The Journal Gazette during 2006 compared to 46 mentions the year before. He was indeed a busy man, practically compiling a list of Top 10 stories of the year all by himself, including:

Proposing construction of an inn at Dunes State Park despite protests from environmental groups; sticking with the inn plan after no private investors bid on the project by saying the DNR would build one; revamping state forest management practices; approving a major renovation of the public shooting range at Atterbury Fish and Wildlife Area; developing a statewide trails system; targeting non-native mute swans and then halting the effort after protests from lake dwellers; authorizing possession of handguns on state park properties; scheduling two special hunts in an effort to recruit young hunters; giving a coal company the OK to explore for coal on a state fish and wildlife area; and extending the one-buck rule that allows deer hunters to kill only one antlered deer per year.

The one issue Hupfer couldn’t resolve the way he wanted was putting an end to canned hunting.

He announced in August 2005 that the practice of charging clients to shoot animals in penned enclosures would be illegal come April and asked the General Assembly not to intervene. Legislators sympathetic to the high-fence operators tried anyway but failed.

Facing a lawsuit from one operator, Hupfer backpedaled into a negotiated settlement that will allow a handful of canned hunt operations to stay in business for another 10 years.

A judge ruled Thursday that the Fort Wayne-Allen County Health Department does not have to identify a child-care center where a child tested positive for E. coli bacteria last year.

The Journal Gazette filed a lawsuit in August 2005 in Allen Superior Court against the department after it refused to identify the center. The health department argued that by identifying the child-care center, which has less than 20 children, it would identify the ill child because of the center’s small size.

The health department also argued that it didn’t have to release the information because it was not for statistical purposes, which is an exception to the rule for releasing information under Indiana law.

During a hearing last month, attorneys for The Journal Gazette argued that it was a matter of public interest and that the health department was not covered or bound by the Health Insurance Portability and Accountability Act, which dictates what medical information can be released.

Allen Superior Judge Stanley A. Levine sided with the health department on the issue of confidentiality, writing that “the confidentiality statute must be strictly construed to effectuate the statutory mandate of confidentiality, and therefore, since the request was not made for statistic purposes, the name of the day care center should not be released.”

Sunday, December 24, 2006

Last evening C-Span's America and the Courts presented the one-hour oral argument before a 2nd Circuit panel in Fox Television v. Federal Communications Commission. I'd rate it a "don't miss watching."

One member of the panel recused himself, so the counsel argued to a 2-judge panel. [Correction: A reader has pointed out that there was indeed a 3-judge panel. I've gone back and reviewed the beginning of the tape and, sure enough, Judge Pooler states that Judge Sach (sp?) has recused himself and that Judge Leval will be sitting in his place. Judge Hall is the 3rd panel member.]

Counsel included Carter G. Phillips of Sidley Austin, who is also the subject this week of this admiring story, and Eric Miller for the FCC.

Yesterday morning on live TV, on the staid cable network C-SPAN, judges and attorneys repeatedly used the F-word, and the S-word, and even some longer but equally volatile words.

It was important, but that made it no less entertaining.

They were discussing Nicole Richie and Cher, "Saving Private Ryan" and awards shows, the CBS "Early Show" and newscasts - and what words were and were not appropriate on broadcast television.

The occasion was an hour and 20 minutes of oral arguments in the case of "Fox Broadcasting v. Federal Communications Commission," broadcast live from New York's U.S. Court of Appeals, Second Circuit. (Appropriate viewer advisories included.)

At issue was the FCC's revised standard of decency for over-the-air TV. The court, in its wisdom, let TV cameras capture and relay this most germane of communications issues. * * *

Each side went to bat with a single counsel: Carter Phillips for the network point of view, and Eric Miller for the FCC. Rating their performances in court, in TV terms, was easy: Phillips was solid without being showy, and the much younger Miller never knew what hit him.

What hit him, most of all, was Judge Rosemary Pooler. The other judges with her, especially Pierre Leval, all made Miller squirm as he tried to defend the FCC's strong stance against "fleeting expletives." Pooler, though, let Miller talk just long enough to dig himself several holes, then buried him in them. [ILB- There was only one other judge with Judge Pooler, as explained at the start of this entry. Judge Pooler herself, however, was quite outstanding.]

When Miller explained that the FCC policy was crafted largely to protect young children from indecent language, Pooler asked why the FCC wasn't similarly concerned about violence. And when he said broadcast TV should be regulated differently than cable because it was more pervasive, and because some children had broadcast TVs in their bedrooms, Pooler argued that any parent who allowed an unmonitored TV in a child's room already was abdicating responsibility.

"You want to protect those children ... even when their parents are lax," she told him.

The slippery standards were made clear to anyone who watched yesterday. Cher uttering an obscenity live on the Billboard Music Awards? Unacceptable to the FCC.

That same utterance by Cher, if replayed on broadcast news putting these very Fox v. FCC hearings in context? Protected as news. But if the FCC seeks to protect children from any exposure, why is news safe?

The FCC didn't have persuasive answers to most of the tough questions posed yesterday.

In the weeks leading up to his retirement, the third-floor Courthouse office had become a free-for-all as items slowly disappeared. * * *

The clean-out process was in preparation for his retirement this month after 16 years on the bench in Noble County.

A former chief deputy prosecutor under Prosecutor G. David Laur, who now serves as Circuit Court judge in the county, the 63-year-old says he’s both sad and excited to leave his courthouse days behind. Spindler was appointed as judge in 1990 by Gov. Evan Bayh.

“Leaving is wistful, but it’s also a great relief. The yoke of responsibility is weighing heavily on my shoulders day after day and I’ll be happy to have it lifted,” he said recently in his office. “It’ll be a pleasure to be freed from the alarm clock and the tyranny of the calendar.” * * *

Describing Spindler as tireless, intense and a constant thinker, close friends and colleagues say his love for the law shines through in those tough choices.

Joe Rowe, who worked in the same law firm as Spindler for 15 years, said Spindler can’t leave work at work. Rowe now serves as Noble County chief deputy prosecutor.

“He’s not the type of person to just leave everything at the office and go home and pet the dog,” he said. “He’ll go home and pet the dog but he’ll be thinking while he’s doing it.”

That’s a character trait that Laur – who meets with Spindler every morning at 7 for a fresh cup of coffee – says is hard to miss in his friend. Laur has known Spindler – who has been known as “Sparky” in the past – since 1975.

“He took things to heart. I guess if something was bothering him it went home with him,” he said. “I was lucky … no matter what terrible, terrible things came in during the day I could leave it at work. He couldn’t. In the morning he would have fresh ideas where I hadn’t thought about it.”

Spindler has volunteered to serve as a senior judge, to fill in for absences, and already has 10 weeks’ worth of court dates in Noble, Allen and Whitey counties over the next year, he said.

He has only one week left of work and time to find new homes for some of his last unclaimed trinkets.

Rowe said quietly he doesn’t want any of them.

“I don’t want things from him,” he said. “The memory of a good legal career is sufficient for me.”

Elkhart County Superior Court 2 Judge Stephen Platt will transition to serving as a senior judge and mediator when he leaves his Elkhart office Dec. 31.

Judge Platt, 61, has served as judge of Superior Court 2 and before that in the former Elkhart County Court for a total of 28 years. The county court became Elkhart Superior Court 5. * * *

Platt, a native of Valparaiso, graduated from Valparaiso Law School and moved to Elkhart to raise his family. He worked six years with a local law firm before he was first appointed to the bench at age 34.

Elkhart attorney and City Council member Steve Bowers defeated Platt in the spring Republican primary to win the party’s nomination for judge of Superior Court 2. There was no Democrat challenger in the November election.

“I have loved it,” Judge Platt said recently. Serving as judge is not for everyone, he said. “A judge has to do what you have to do,” in imposing what he thinks is a fair sentence. * * *

Judge Platt suffered a stroke in August, 2005, and was hospitalized several weeks recovering and taking therapy. He said he returned to work in January because he felt he had to. “I worked another year,” he pointed out.

“I feel pretty lucky,” he said. He went on to explain he plans to serve in mediation and may be called as a senior judge after leaving Superior Court. He pointed to a cane and said he plans to retire it soon.

“Judge (Gene) Duffin said ‘You have to help me,’ with mediating cases. He can’t do them all,” Platt said.

Platt said he plans to resume physical therapy this month, trying to gain more mobility and use of his right arm. He said he used to enjoy golf and snow skiing, but those activities are on hold until he gets better.

KNIGHTSTOWN – Two students expelled for making a movie in which evil teddy bears attack a teacher must be allowed to return to school, a federal judge has ruled.

U.S. District Judge Sarah Evans Barker in Indianapolis granted a preliminary injunction Friday ordering Charles A. Beard Memorial School Corp. to let Cody Overbay and Isaac Imel return to Knightstown High School for the second semester.

She also ordered the school to allow the students to make up any work they had missed since their expulsions began in October. * * *

The boys, who are sophomores, worked on the movie, “The Teddy Bear Master,” from fall 2005 through summer 2006.

In the movie, the “teddy bear master” orders stuffed animals to kill a teacher who had embarrassed him, but students battle the toy beasts, according to documents filed in court.

School officials expelled them and two other students for their work on the movie, and the Charles A. Beard Memorial School Board upheld the expulsions. School officials argued that the film was disruptive and that a teacher whose name was used in the movie found it threatening.

The Henry County prosecutor’s office reviewed the movie but declined to press charges.

Indiana law allows expulsion for activity unconnected with school if the activity is unlawful and interferes with school operations.

In her ruling, Barker said the movie was “vulgar,” “tasteless,” “humiliating” and “obscene,” but officials had not proved it disrupted school.

Principal James Diagostino, during testimony Friday, characterized the “disruption” as a group of students talking about the DVD at lunch. But later testimony showed that the students included some of the movie makers and it was after Diagostino had found out about the movie.

Barker, however, did not believe it was a coincidence that the teacher in the movie had the same name as a math teacher at Knightstown Intermediate School. She encouraged the teens to apologize to teacher Daniel Clevenger and the school administration.

Saturday, December 23, 2006

Ind. Courts - Grant Circuit Court Judge Thomas Hunt retiring

Sean Driscoll of the Marion Chronicle-Tribunewrites today on Grant Circuit Court Judge Thomas Hunt, who is stepping down at the end of the year. Some quotes:

Like an excited kid putting a new Christmas toy through the paces, Thomas Hunt used his infrared mouse to close a document on his shiny new Dell notebook computer.

"Isn't this cool? Look at this," he said Thursday, waving his wireless mouse in the air, making it do tricks.

He then reached down to his office computer and yanked out a flash drive hanging from a lanyard.

"A month ago, I didn't even know what this was," he said, laughing as he inserted the drive into his laptop.

Hunt is going to have to learn a few new tricks when the calendar rolls over into the new year. At 58, he's had two jobs: a rookie lawyer at a downtown law firm and judge of Grant Circuit Court.

Now he's starting his third, and it's taking him back to the downtown law office where as a young buck, just out of law school, he began his career in 1973.

Hunt will be an attorney at Kiley, Harker & Certain, just a few blocks away from the Grant County Courthouse. He'll work as a civil mediator, meeting with disputing parties to resolve cases before they end up in a courtroom.

Trying to keep things out of court will be quite a change for a man who's been on the bench for nearly half his life, presiding over 278 trials.

"I had to get out and do something else, give those other muscles a workout. I'm looking forward to that," he said. "Change is good. We all need change."

It will be quite a change, not only for Hunt, but also for the county judicial system. At 26 years, Hunt's is the longest tenure a judge has served in Grant County, and he was the senior judge on the bench. When Mark Spitzer, Hunt's elected successor, takes office Jan. 1, the county's four judges will have 20 years of experience among them.

Six years ago, those at the helm in the same courtrooms boasted 77 years of experience.

But in the last few years, Hunt said he's seen a lot of sharp thinking and new ideas coming from his relatively new colleagues, and he has complete confidence that Spitzer will make a fine addition to the group.

"It's a shift, but not necessarily a bad one. Maybe staying here makes you stagnant, not open to new ideas," Hunt said.

He's confident the Courthouse will get on without him and life will continue past Dec. 31.

This November 10th ILB entry quoted another Chronicle-Tribune story, reporting on a suit filed by Judge Hunt "to regain the $5,000 in supplemental salary that the county cut in Grant Superior Court 1." The ILB has no information on the status of that action.

Courts - Nevada judge attending courses at the National Judicial College runs into trouble

After reading my latest entry (directly below) about the Nevada court system, a reader sent this September 29, 2006 story from Nevada's Lahontan Valley News:

District Court Judge Wayne Pederson was the victim of extortion this summer after having sex in his Reno hotel room with a known drug user while he was attending courses at the National Judicial College, a Reno police report states.

Reno Police Department spokesman Steve Frady confirmed Thursday that a case was investigated with Pederson listed as the victim of extortion.

Reno police opened an investigation July 11 after Pederson reported his wallet had been stolen.

The report states Pederson met Irene Bailey, 35, July 10 for dinner, and she ended up staying the night in his hotel room. Pederson was staying at the Silver Legacy while attending judicial courses at the National Judicial College.

The story goes on to relate that according to the police report Pederson received a call:

"A male voice asked Pederson if he was running for judge. Pederson answered yes. The male then told Pederson he needed to give him his credit card PIN number."

Courts - Nevada high court rule to require judges to disclose past relationships with attorneys who worked for them as law clerks

The Las Vegas Review Journal has a story today by Sean Whaley that reports:

CARSON CITY -- The Nevada Supreme Court added a new rule to its code of judicial conduct on Friday to require judges to disclose past relationships with attorneys who worked for them as law clerks.

It also adopted a rule allowing the peremptory challenges of senior judges in some cases.

The disclosure rule, one of several proposed by retiring Chief Justice Bob Rose, will require judges to disclose law clerk relationships within three years of their employment. An opposing attorney appearing before the judge would then have the opportunity to ask the judge to disqualify himself based on the relationship.

"A party or the party's lawyer might reasonably consider another attorney's recent service to the judge as a former law clerk to be a relationship relevant to the question of disqualification," the new rule states in part. * * *

The rules, along with others still being considered by the court, were proposed following a series of articles by the Los Angeles Times about the Nevada judiciary.

Ind. Courts - 156-year-old Orange County Courthouse to get elevator

PAOLI — Getting around inside the Orange County Courthouse will get easier now that funding is coming for an elevator in the 156-year-old building.

It’s a move Orange Circuit Court Judge Larry Blanton said needs to happen. He discussed the matter during a meeting of the Orange County Commissioners and the Orange County Council earlier this year. He reiterated his message this week.

“The grant will help us meet the federal law and federal rules that would provide access for handicapped persons under the ADA (Americans with Disabilities Act),” Blanton said.

He warned county leaders last summer, “You are one handicapped person away from a lawsuit closing the whole thing down.”

Orange County has been awarded a $525,000 Community Focus Fund grant for the project through the Indiana Office of Community and Rural Affairs.

The application required the county to come up with a $145,000 match.

This brings to mind a dispute I wrote about in a September 2005 Res Gestae article, involving the Vigo County Courthouse and a dispute between the judges and the county commissioners over who would run the elevator. Here are some quotes:

More than a century ago a similar dispute about the supervision of courthouse personnel took place between the board of county commissioners and the courts in Vigo County, and made its way to the Indiana Supreme Court. The new-fangled device at issue in 1893 was not the Internet, but the elevator.

The Vigo County courthouse, “three stories high above the basement,” was built with stairways at each end and an elevator in the center. The county officers and board of county commissioners were located on the first floor, the courts on the second floor, and the grand jury and other offices on the third floor.

The commissioners had operated the elevator since the courthouse was opened for use in April of 1887, but not “to suit the convenience or necessities of the circuit and superior courts.” The elevator was often shut down before the courts adjourned. Frequently “persons attending court were compelled to use the stairways, while the records had to be carried up.”

Environment - "Chemical plants to get security rules"

Sitting between a freeway and the Ohio River, the chemical plants of Rubbertown are considered a potential terror target where a release of deadly chemicals could sicken or kill people for miles.

For the first time, the federal government has proposed rules that would require plants like the ones in Louisville and thousands more across the country to take steps to prevent an attack.

The U.S. Department of Homeland Security yesterday said it intends to make chemical plants conduct vulnerability assessments and draw up security plans. Inspectors would make sure plants follow the rules.

Fines for noncompliance could reach $25,000 a day.

In extreme situations, the government could shut down a facility, the agency said.

"The consequences of an attack at a high-risk chemical facility could be severe for the health and safety of the citizens in the area and for the national economy," Homeland Security Secretary Michael Chertoff said in a statement.

He said the department is setting performance standards "that are both sensible and disciplined, allowing owners and operators the flexibility to determine an appropriate mix of security measures at their facility under our supervision and subject to our approval."

The program would also be wrapped in secrecy, creating a new category of documents called Chemical-terrorism Security and Vulnerability Information that could be viewed only by people "with a need to know."

Spokesman Russ Knocke said the homeland security department would decide what information to release "on a case by case basis."

During a forthcoming public review of the proposed rules, the agency will be asked whether people who live near chemical plants will be able to find out if the plants are following the law, said Sean Moulton, who has been tracking the issue for OMB Watch, a Washington, D.C., group that encourages open government.

"Judge gives RiverPlace green light: Ruling doesn't address issue of project's effect on White River" is the headline to a story today by Bruce C. Smith in the Indianapolis Star. Some quotes:

A Marion County judge has upheld a state-issued permit allowing a developer to press ahead with plans for RiverPlace, a huge residential and commercial real estate project along White River in Fishers.

Judge Michael D. Keele's eight-page ruling did not attempt to sort out conflicting opinions of engineers and other experts about whether changes to the river might cause flooding in Marion and Hamilton counties, as environmentalists fear.

Instead, the judge found that the Hoosier Environmental Council, which hopes to block the project, missed the chance to appeal the permit immediately after it was issued Aug. 26, 2005.

That permit allows Centre Properties to shift terrain on 15 acres in the flood plain to raise the elevation for part of RiverPlace.

State law allows 15 days for the public to ask for an appeal or administrative review. * * *

To have enough land for such a large project, Centre asked the state for permission to put fill dirt in about 15 acres of flood plain and to improve the flow of the river by scooping out an additional channel in that area.

The dispute began several years ago. Centre initially was denied its permit, but the developer presented engineering data that convinced state experts the work could be done without harm to the river.

In his ruling, the judge granted a summary motion requested by Centre's attorneys and upheld the deal that the state and the developer negotiated.

Indianapolis attorney Jeffrey B. Hyman, representing the environmental council, said the organization is weighing whether to continue its fight to the Indiana Court of Appeals.

"We still believe the (government's) procedure was incorrect and illegal," he said.

Donna C. Marron, an attorney for Centre, said the ruling "recognizes the process and procedures that citizens must follow to challenge a state agency's actions." * * *

WHAT'S NEXT: Indianapolis-based Centre Properties is proposing one of the largest developments in fast-growing Hamilton County on a site of nearly 70 acres on the northwest corner of 96th Street and Allisonville Road in Fishers. The site is zoned for commercial development, and Centre is asking for a rezoning to allow a variety of land uses, including office and residential. The Town Council is expected to consider the matter next month.

The ILB hopes to be able to post a copy of Judge Michael D. Keele's opinion (Marion Superior Court, Civil F12, Environmental Court). Please contact me if you can help.

Law - 1st Circuit rules on RCRA citizen suits and standing

An important ruling on RCRA citizen suits and standing was issued yesterday by the U.S. Court of Appeals for the First Circuit in Maine People's Alliance v. Mallinckrodt, Inc, a 48-page opinion. Some quotes from the beginning and end of the decision:

In the teeth of two decades of
contrary precedent from four circuits, defendant-appellant
Mallinckrodt, Inc. asks us to restrict the role of private citizens
in the abatement of imminent and substantial threats to the
environment and public health. In support of this entreaty,
Mallinckrodt presents a gallimaufry of new, hitherto unconsidered
arguments. After careful consideration of this asseverational
array, we conclude that our sister circuits have adroitly distilled
the meaning of section 7002(a)(1)(B) of the Resource Conservation
and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B) — the so-called
citizen suit provision. Correctly interpreted, this provision
allows citizen suits when there is a reasonable prospect that a
serious, near-term threat to human health or the environment
exists. In such situations, the provision permits remedies [1]
consistent with the scope of a district court's equitable
discretion. * * *

We need go no further. Despite an impressive array of
arguments, skillfully presented by extraordinarily able counsel,
Mallinckrodt has not persuaded us that the plaintiffs lack standing
to sue, that its cramped interpretation of RCRA § 7002(a)(1)(B) is
what Congress had in mind, or that the district court acted outside
the realm of its discretion in fashioning a remedy for the
threatened harm. Consequently, we uphold the district court's
rulings in all respects.
___________

[1] We use the phrase "near-term threat" advisedly. It is the
threat that must be close at hand, even if the perceived harm is
not. For example, if there is a reasonable prospect that a
carcinogen released into the environment today may cause cancer
twenty years hence, the threat is near-term even though the
perceived harm will only occur in the distant future.

Ind. Law - Still more on Crown Point's "Big Box" Ordinance

This April 24th ILB entry reports that Crown Point had hired "outside counsel to assist with its fight against a big-box developer's suit."

Yesterday, a brief story by Marisa Kwiatkowski in the NWI Times reported:

A lawsuit challenging Crown Point's stance on big-box development is on hold.

Lauth Property, LLC and Crown Point Partners LLC and the city filed a joint motion to stay the federal district court case for 120 days. The move could mean the end of a fight to bring a Wal-Mart store to Crown Point.

The developers entered into a tentative agreement to sell 56.77 acres at the southeast corner of Interstate 65 and U.S. 231 to Harlem Irving companies, according to court documents filed earlier this month.

Lauth and its partner's initial plan to bring two anchor stores to the undeveloped area was blocked by the city earlier this year.

In March, Lauth filed a complaint against the city and Plan Commission, accusing them of enacting an ordinance controlling big-box development to prohibit a Wal-Mart from coming to Crown Point.

The ordinance forces retailers who want to build stores 75,000 square feet and larger to go before the Board of Zoning Appeals and City Council for a special-use permit.

The suit claims the city and commission violated the U.S. Constitution, the Indiana Constitution and conflicts with federal and state anti-trust laws.

City Attorney Rich Wolter said he is optimistic the property sale will go through, and the suit against the city will be dropped.

Ind. Court - Judge orders defendant to get rid of cable TV

A unique form of punishment - ordering a halt to cable television at a defendant's home - was part of a sentence handed down in Wednesday's session of Adams Superior Court.

The unusual decision by Judge James A. Heimann came in the case of Margaret C. Vanzo, 39, Decatur, who was sentenced after pleading guilty on November 22 to fraud and identity deception. She admitted obtaining a credit card by using the name of a former boyfriend.

The judge, who ordered Vanzo to serve 30 days in the county jail, took note of her lack of a job as he decreed that Vanzo must stop cable TV service and use the money saved to pay $1,637 in restitution to the ex-boyfriend, $159 in court costs, and probation fees.

Heimann told Vanzo that cable TV "is a luxury you cannot afford." He gave her two concurrent 18-month jail terms, with all but 30 days of each suspended; placed her on probation for 18 months; and told Vanzo to complete the Life Skills course offered by the local branch of LOVE In the Name of Christ.

Friday, December 22, 2006

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

I agree with the majority’s determination that our legislature’s amendment of Indiana Code section 35-38-1-7.1 indicates an intention to change the common law as it existed before April 2005 regarding the requirement of “a sentencing statement anytime the trial court imposes a sentence other than the presumptive.” Slip op. at 4 n.2 (quoting McMahon v. State, No. 79A02-0603-CR-170, 2006 WL 3258325 at *5 (Ind. Ct. App. Nov. 13, 2006)).

Hence, it is also my view that the pronouncement made by a different panel of this court in McMahon would effectively resurrect the precise Sixth Amendment problems that the legislature sought to eliminate with its amendment of Indiana’s sentencing scheme.

On the other hand, I cannot agree that a four-year sentence was appropriate in this circumstance. Indeed, the State does not dispute Windhorst’s contention that he had no criminal history. And Windhorst entered into a plea agreement with the State just two and one-half months after his arrest, Appellant’s App. 4-6, 22-24, thus indicating an acceptance of responsibility for his actions. In my view, Windhorst’s decision to plead guilty at such an early stage of the proceedings saved the State significant time and resources, thus affording it a substantial benefit.

Christine Masick fell on a temporary step and hit her head while looking at a house that was under construction and listed for sale with McColly Realtors. She sued McColly and Saxon Drywall, a subcontractor whose employees were working on the house, alleging McColly and Saxon had a duty to warn her of the defective step but failed to do so. The trial court granted summary judgment for McColly and Saxon; we affirm in part, reverse in part, and remand. * * *

Neither McColly nor Saxon exercised sufficient control over the premises to give rise to a duty, under premises liability standards, to warn Masick about the step. We decline to impose on real estate brokers an independent duty to inspect properties they show and to warn prospective customers about dangerous conditions they so discover, and McColly’s agent did not gratuitously undertake such a duty. However, we hold a real estate broker, like a prospective landlord, has a duty to warn a prospective buyer of hidden defects known to the broker but unknown to the tenant. We accordingly affirm summary judgment for Saxon but reverse summary judgment for McColly. Affirmed in part, reversed in part, and remanded.

Northern Indiana Public Service Company (“NIPSCO”) appeals and Jupiter Aluminum Corporation (“Jupiter”) cross-appeals from a decision of the Indiana Utility Regulatory Commission (“IURC” or “Commission”).

NIPSCO raises two related issues, which we restate as: 1) whether the IURC exceeded its statutory authority by requiring NIPSCO to make a direct cash payment of 2.5 million dollars to Jupiter for the purchase of equipment that will benefit Jupiter and that Jupiter will own; and 2) whether the IURC exceeded its statutory authority by prohibiting NIPSCO from recovering the 2.5 million dollars in rates. In its cross-appeal, Jupiter raises one issue: whether the “complete resolution” language in the IURC order bars Jupiter from pursuing legal remedies against NIPSCO.

The resolution of the first two issues depends in part on whether the Commission concluded NIPSCO provided “reasonably adequate service” to Jupiter. However, the Commission’s conclusion on this issue is ambiguous and does not permit us to review the order. Nor can we determine what the Commission intended when it used the phrase “complete resolution.” Accordingly, we remand this case to the Commission with instructions to clarify its order, enter appropriate findings and conclusions, and submit the revised order to us within sixty days of the date of this opinion. * * *

Much of the language in the findings and analysis section of the Commission’s Order is tentative and indeterminate, making it difficult to ascertain which party’s factual assertions the Commission credited and, in turn, what the Commission found. Because of the ambiguity in the Final Order regarding whether NIPSCO provided reasonably adequate service, each party can support its interpretation of the Order by referring to various statements in the Commission’s Final and Interim Orders and in the reports from GE Industrial.

Ind. Decisions - Transfer list for week ending December 22, 2006

Here is the Indiana Supreme Court's transfer list for the week ending December 22, 2006.

Nearly three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

List of Cases Granted Transfer and Awaiting Decision. The ILB has constructed what will be a dynamic table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. Access the list here. (Will be updated shortly.)

"R. Scott Lewis appointed judge of Jeffersonville City Court; Daniels names lawyer to replace Carmichael" is the headline to a story today by Lesley Stedman Weidenbener in the Louisville Courier-Journal. Some quotes:

R. Scott Lewis, a private attorney who has represented the Clark County commissioners and council, will be the new judge of Jeffersonville City Court, Gov. Mitch Daniels announced yesterday.

The governor appointed Lewis to replace Vicki Carmichael, who was elected to Clark Superior Court in November. The change will take place Jan. 1.

The City Court handles 1,500 to 2,000 cases a year, primarily traffic and misdemeanor charges.

Lewis, a graduate of the Indiana University School of Law, has worked in private practice for 10 years and served as a deputy prosecutor in Clark County. He is currently the attorney for the Clark County Council and also has served as an attorney for the county commissioners. * * *

Since the job is a part-time position, he said he will maintain his private practice.

Abraham Navarro, a deputy Floyd County prosecutor, also had applied for the post.

The change comes as Jeffersonville Mayor Rob Waiz is looking at ways to reduce the court's $180,000 annual cost. He had proposed to the City Council that it eliminate the court, but members declined to consider the request.

A Vanderburgh County deputy prosecutor with 17 years of experience in that office soon will leave to become a Perry County magistrate.

Jonathan Parkhurst said this week he intends to fill a position in Perry County that will be open in March or April when another judge goes on maternity leave.

Until then, he will remain in Vanderburgh County, where he has been a deputy prosecutor since 1990.

Parkhurst will join Lucy Goffinet, a newly elected Circuit Court judge for Perry County. When she takes office on Jan. 2, Goffinet will become the first woman to don the judge's robe in Perry County.

Parkhurst and Goffinet previously worked together in the Vanderburgh County prosecutor's office from 2002 to 2004, then she became a deputy prosecutor in Warrick County. She has been Perry County's chief deputy prosecutor for about two years.

Updating this ILB entry from Dec. 21st about the mass destruction of misdemeanor records in Kentucky's Jefferson County last month, carrried out by Kentucky the Administrative Office of the Courts, Andrew Wolfson of the Louisville Courier Journalreports today:

Kentucky court officials violated their own rules when they seized and destroyed misdemeanor records in Jefferson County last month, employees of the Jefferson circuit clerk's office said yesterday.

State rules allow records to be destroyed only if circuit court clerks request it, Chief Deputy Clerk Russ Salsman told a panel appointed to investigate the purge.

But the Jefferson County circuit court clerk's office never made such a request before the Administrative Office of the Courts removed and shredded the county's microfilm records, Salsman said.

"They got it backwards," said Court of Appeals Judge Tom Wine, who was appointed by state Chief Justice Joseph Lambert to head a five-member committee charged with investigating what occurred.

Leigh Anne Hiatt, the AOC's spokeswoman, said it wouldn't comment until the investigation is complete and the panel issues its report, which she said would be in three or four weeks.

Local prosecutors and judges have complained that the purge of records dating before 2001 endangered the public and undercut the prosecution of spouse abusers and other offenders.

Commonwealth's Attorney Dave Stengel has said prosecutors lost a key tool used in sentencing and bond hearings, as well as in trials, to show that an offender has a pattern of misconduct.

And County Attorney Irv Maze has said that day-care and elder-care agencies no longer would be able to check the full misdemeanor conviction background of job applicants.

Lambert acknowledged this week that there may have been "significant mistakes made" when the AOC hauled away the microfilm and microfiche records in Jefferson County and had them destroyed.

E-mails presented to the panel yesterday show that the AOC ignored at least three written pleas to hold off on the purge. One was from the state Office of Probation and Parole, which has used misdemeanor conviction records in presentencing reports to help judges determine whether offenders should be granted probation.

In an e-mail Nov. 28 -- the day before the records were taken -- interim Circuit Court Clerk Michael Losavio warned that "innocent folks" would be unable to prove that charges had been dropped, while "guilty folks" would "no longer have to face the sentencing consequences of prior misdemeanors."

The AOC's general manager of court services, John Dobson, responded later the same day that the purge could not be avoided because the state court records-retention policy required it.

"The AOC, serving as an administrative arm to the Supreme Court, is simply trying to assist in carrying out the regulations set forth by the chief justice," Dobson said.

Appearing before Wine's committee, however, Diane Hawkins, archive manager for the clerk's office, said the AOC broke another rule by seizing microfiche copies of judge's dockets without auditing them first.

Hawkins, whose bosses earlier dubbed her "Joan of Archives" for trying to save the records, said those audits are required to ensure that records slated for destruction don't include convictions for crimes that can be enhanced if defendants are charged again with the same offense.

Salsman also disclosed that AOC removed another set of records -- an electronic file of district court cases from 1987 to 1998 -- even though the circuit court clerk's office never requested that it be purged. He said AOC has not responded to e-mails about the disappearance of the Jefferson District Court Information System, as the file was known.

Wine ordered that several AOC employees -- including Ed Crockett, general manager of pretrial services -- appear to testify before the panel. He also set three days for hearings, the first of which was tentatively scheduled for 9 a.m. Thursday.

He said AOC officials were not invited to serve on the committee because their conduct is the subject of the probe.

Wine said the panel, which includes Circuit Judge Steve Mershon and District Judge Audra Eckerle as well as representatives of the public defender's and circuit court clerk's offices, will explore whether the AOC records policy was followed and, if it was, whether it should be changed.

Wine told reporters afterward that he doesn't think the records can be reconstructed, although he said the AOC has agreed not to purge any more records pending the outcome of the investigation.

Thursday, December 21, 2006

Ind. Decisions - More on "Case of slain girl sent back to judge"

A Marion Superior Court judge said today he won't remove himself from the death-penalty case of a man accused of killing 12-year-old Christina Tedder nearly two years ago.

Judge Grant Hawkins rejected prosecutors' arguments that he should recuse himself from Jeffrey Voss' case because of a perception he is against the death penalty. Last month, the Indiana Supreme Court sent the matter back to Hawkins, ordering him to decide whether to recuse himself instead of delegating the decision to a special judge, as he had in May 2005.

Hawkins said his skepticism about the death penalty was well known, but "the jury makes the decision, not the judge. ... My job is to follow the jury's lead."

Today's hearing was the first since the high court's 5-0 ruling one month ago. Hawkins set a trial date for Jan. 28, 2008, and attorneys on both sides agreed the trial likely would last three weeks. They will meet after the holidays to work out a timeline for discovery, depositions and other pre-trial work.

Here is the Nov. 22nd ILBentry in Jeffrey Voss v. State of Indiana (Interlocutory Appeal from the Marion Superior Court).

Environment - No coal mining at Glendale Fish and Wildlife Area

The Indiana Department of Natural Resources has issued a press release announcing that there will be no coal mining at Glendale Fish and Wildlife Area. Some quotes:

DNR Director Rob Carter's announcement came after the review of exploratory drilling results that were received Dec. 11, and the assessment of feedback from an Oct. 11 public meeting in the Glendale area on the subject.

The DNR had contracted with mining company Black Beauty, Inc., to determine if there were viable coal reserves at Glendale. The drilling data obtained showed the area to hold substantial coal; however, the overwhelming majority of people at the meeting opposed mining the area.

In the months in between, the DNR received no indication of public support for the mining proposal. That lack of backing resulted in today's announcement.

Carter's decision came despite the finding of a coal reserve that could have been mined and appeared to be merchantable. But, as DNR representatives said in the October public meeting, any mining plan would have to be with the agreement of the U.S. Fish and Wildlife Service and have some local support. Lacking local support, the DNR opted to not forward a plan to U.S. Fish and Wildlife.

A former two-time elected prosecutor will be Hamilton County's lead prosecutor for major felony cases.

Cynthia "Cindy" Crispin was Fayette County prosecutor from 1991-94 and 1999-2002. As chief trial deputy prosecutor here, Crispin, 52, will make about $85,000 annually from Indiana and $5,000 from Hamilton County.

Crispin has handled more than 1,000 major felony cases, Prosecutor Sonia Leerkamp said, noting the county is lucky to have such an experienced lawyer. She is one of 23 deputy prosecutors in the office, and will start the week of Jan. 14. * * *

Crispin replaces Barbara Trathen, who resigned in November to work in the Marion County Prosecutor's Office. Trathen made headlines in 2005 when a CBS TV show, "Close to Home," used her for inspiration for its main character.

Crispin currently is a state deputy attorney general and serves on a task force in Lake County investigating voter fraud and official misconduct. She's the lead prosecutor in those cases, which have so far resulted in 11 convictions on 52 indictments. Most cases are set for trial in February and some are scheduled for guilty pleas, she said.

In addition to her experience in Fayette County, Crispin was a major felony deputy prosecutor in Marion County from 1995-98, and was Jackson County's chief deputy prosecutor from April 2004 to June 2005. She also worked for the attorney general beginning in 2003 before leaving for Jackson County.

An attorney who specializes in domestic violence cases will join Bartholomew County prosecutor's office in January.

Lynda Kaye Robison will serve as the deputy prosecutor assigned to Bartholomew Superior Court 1, which handles all of the county's domestic violence cases and a variety of other major felonies, Prosecutor Bill Nash said.

Robison will come to Bartholomew County from the Monroe County prosecutor's office where she has served since 2001 as a deputy prosecutor in a role similar to the one she will fill here.

She also has a variety of educational and employment experience that makes her "particularly well-suited to take on the challenging caseload in Superior Court 1," Nash said.

Robison has served as an assistant district attorney and as a victim advocate in Philadelphia.
* * *

"She's not daunted by the task ahead," Nash said, noting the case load in Superior Court 1 has increased since all domestic violence cases have been directed to the court.

Ind. Courts - News of Terre Haute, Angola

Swearing in ceremonies for new office holders in Vigo County took place Wednesday at the Vigo County Courthouse. Those people who won their races in the November election were officially sworn into office.

This includes a brand new City Court Judge. Christopher Dailey was appointed Tuesday by Indiana Governor Mitch Daniels to be Terre Haute's City Court Judge. * * *

Dailey replaces Judge Michael Lewis who won election to the Division 6 bench.

Don't expect a city court like the town court that has operated in Fremont for many years to be established in Angola anytime soon. City Attorney Kim Shoup said during Monday night's Angola City Council meeting that he was asked recently to look into the possibility of having such a court. But under terms of a state law, the time to establish such a court in Angola has almost expired for four years since 2006 was one of the designated years a city court could be established. Both Shoup and Mayor Dick Hickman wondered whether it would be cost effective at all. Hickman said another mayor has told him that their communnity of nearly 30,000 people have to subsidize their city court.

D. Print Size. The font shall be Arial, Courier, Courier New, CG Times or Times
New Roman and the typeface shall be 12-point or larger in both body text and footnotes. . . .

These amendments shall take effect January 1, 2007.

Maley pointed out some issues for those who also practice in federal courts:

The U.S. Supreme Court and the Solicitor General use Century. But Century is not allowed under the new Indiana rule.

The 7th Circuit recommends Century and suggests using proportionally spaced type, but to avoid Times New Roman.

My thought was that perhaps the new Indiana list was tied to the standard set that works uniformly with PDF-documents (i.e. if you use a font other than those on the list in a PDF document, and the reader on another computer does not have your special font, it will substitute -- usually with Courier, and the whole appearance of your document may change).

However a look at the list of standard PDF fonts shows that not to be the case, two of the Indiana- recommended fonts - Courier New and CG Times - are not on the PDF list.

This means that if you submit your brief in CG Times, for instance, and it is converted to PDF, it may not appear the same to all readers unless the "CG Times" font was specifically embedded in the document at the time the PDF was created.

Courts - "The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process"

This post is part 1 in our discussion with Professor David Stras of the University of Minnesota Law School. Professor Stras has written extensively on issues surrounding the Supreme Court; in this entry, we discuss his new paper, "The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process," which can be found here. Professor Stras will be back to discuss two of his other papers (see our original post here), but he also invites further questions about the issue of the Court's docket and the influence of law clerks in shaping it.

EAST CHICAGO | Political operative Robert Cantrell is denying allegations from a second judge that he tried to cajole the court into hiring a counseling firm that was paying Cantrell fees.

In a sworn deposition, East Chicago Judge Sonya Morris said Cantrell threatened to run a challenger against her during the 2003 election unless she agreed to send all of her drug-addicted criminal defendants to treatment at a firm owned by a friend of Cantrell's.

The firm, Addiction and Family Care, is paid to treat clients for court-ordered addiction counseling. At the time, Cantrell was receiving a finder's fee from the firm for each person he could convince judges to refer to them.

Morris said in 2003, she received a message that Cantrell was threatening to put former city judge Eduardo Fontanez in the race against her unless she agreed to make Addiction and Family Care the court's sole counseling provider. * * *

Morris' comments echo accusations from Lake Superior Court Judge Jesse Villalpando, who said Cantrell tried to convince him to hire Addiction and Family Care for his court.

Fontanez, who did not return a call for comment Wednesday, ran against Villalpando this year and lost. Villalpando has said Fontanez was put into the race by Cantrell because of the judge's flat refusal to refer business to Addiction and Family Care.

Courts - More on: Kentucky Supreme Court carries out records purge

An ILB entry Dec. 16th quoted a report from the Louisville Courier Journal that began:

State court officials have endangered the public and undercut the prosecution of spouse abusers and other offenders by destroying all misdemeanor records 5 years or older, prosecutors and judges in Jefferson County say.

Interim Jefferson Circuit Clerk Michael Losavio said the Administrative Office of the Courts sent "six or seven burly men" to the courthouse Nov. 29 to haul away all microfilm and microfiche records dating from before 2001, all of which have since been destroyed.

Electronic records of old misdemeanor convictions also have been purged from the state court computer system.

(This ILBentry from Dec. 18th looked at whether the same thking might happen in Indiana.)

Kentucky Chief Justice Joseph Lambert has organized a group of judges and court officials to look into the recent purging of all misdemeanor records 5 years old or older.

Lambert acknowledged there "may well have been significant mistakes made" when, in November, the Administrative Office of the Courts hauled away all microfilm and microfiche records in Jefferson County dating from before 2001 to destroy them.

Law - Judges and lawyers behaving badly - a second example this week

Tuesday the ILB reported on the Indiana Supreme Court's censure of Judge Newman, Jr., Judge of the Madison Superior Court No. 3 - as a result of the judge's failure to process paperwork, a man spent more than an extra year in prison. Moreover, the Supreme Court found that Judge Newman "failed to exhibit meaningful remorse for the effect that his neglect had on Dawson’s liberty and, instead, blamed his court reporter, the DOC, and the Court of Appeals."

The second example this week comes from a story today in the New Jersey Law Journal, where a New Jersey attorney billed a client $52,742 for what looks to be a few hours service, and then:

When a client hesitated over paying his bill, Richard Ledingham threatened her with criminal prosecution for "theft of services" and he didn't stop there: He also warned that she might lose her business, her home and her professional license.

Those actions -- all to collect a fee judged to be exorbitant -- are cause for suspending the River Vale solo from practice for three months, says New Jersey's Disciplinary Review Board.

Wednesday, December 20, 2006

Ind. Courts - Yet more on: South Bend Osco Triple Murder Trial

This August 6th ILB entry, like the July 10th entry before it, began "The ILB generally doesn't cover murder trials, but ...". Following up on those entries, here is a report this evening from Mark Peterson of WNDU, South Bend:

The prime suspect in South Bend’s Osco triple homicide case has been let off the legal hook.

Prosecutors have decided that Christopher Allen will not be tried for a fourth time in connection with the 1990 robbery and triple murder at the Osco on Western Avenue.

According to special prosecutor Michael McAlexander, “there aren't a lot of surprises in this after this amount of time, the witnesses have been called at least, most of them five times under oath.” * * *

According to McAlexander, time and time again, jurrors have had mixed reactions: “even on the jury that convicted, there were at least two of the alternates in that jury that would have voted not guilty.”

Allen's lone conviction was overturned by the court of appeals. Today Prosecutor Michael Dvorak announced that that Allen’s third trial--the one that ended in July of this year with a hung jury--would be his last: “we believe that we're stuck with a set of facts that at best will render another hung jury, that we don't have the evidence with which after three trials to secure a conviction.

Allen was fired as store manager for stealing about five months before the slayings.

Allen was not charged until 1999, nine years after the murders, when then-prosecutor Chris Toth filed the murder charges as part of his public vow to clear prominent cold cases.

In 2001, Allen’s trial, held in downstate Henry County because of pretrial publicity in St. Joseph County, ended in a hung jury. In 2002, Allen was convicted, but that verdict was overturned on appeal after he had served 576 days in prison.

Dvorak’s administration inherited the case when Dvorak defeated Toth in the 2002 election.

Another Henry County jury deadlocked 6-6 this summer, McAlexander said.

The three murder charges against Allen will be formally dismissed. Because two of his trials ended in a hung jury and his conviction was overturned on appeal, Allen does not face double jeopardy in the case and can be tried again if authorities ever uncover new evidence, Dvorak said.

Both Dvorak and McAlexander said that possibility is remote because they believe all of the evidence relating to the case has been presented during the three trials.

The third trial was the most complete prosecution yet, McAlexander said.

The financial burden of holding another trial factored into the decision but was not a major reason prosecutors declined to take Allen back to court, Dvorak said. “It was a factor, but it was only one factor,” Dvorak said.

The third trial cost $112,215 for public defender fees, investigators and other public defender-related expenses. But that number does not include the costs relating to the jury, witnesses or other associated trial finances.

State Farm Mutual Automobile Insurance Company v. Jakupko was decided by the Indiana Court of Appeals on November 17, 2006. Access the 14-page opinion by Judge Najam here. The ILB did not summarize the opinion at the time, but here is the conclusion:

The development of Indiana case law on the tort of negligent infliction of emotional distress has been brisk, beginning with our supreme court’s opinion in Shuamber. It may well be that State Farm’s automobile insurance policy was not drafted with negligent infliction of emotional distress claims in mind. But in construing the policy we must take into account the body of case law, which recognizes negligent infliction of emotional distress as an independent tort. See Ethyl Corp. v. Forcum-Lannom Assoc’s, Inc., 433 N.E.2d 1214, 1220 (Ind. Ct. App. 1982) (observing “it is well settled that, unless the contract provides otherwise, all applicable law in force at the time the agreement is made impliedly forms a part of the agreement without any statement to that effect.”).

We hold that the definition of bodily injury in the policy includes negligent infliction of emotional distress claims when accompanied by physical manifestations of that distress. And we also hold that the Jakupkos’ injuries were sustained as a result of their direct involvement in the accident. Thus, the Jakupkos’ negligent infliction of emotional distress claims are subject only to the “each accident” limit of liability. The trial court did not err when it entered summary judgment in favor of the Jakupkos. Affirmed.

The Insurance Institute of Indiana, the National Association of Mutual Insurance Companies (NAMIC), and the Property Casualty Insurers Association of America (PCI) have filed a joint amicus curiae brief on a case that the groups believe could set a dangerous precedent for future emotional distress claims.

The trade associations filed the brief with the Indiana Supreme Court in State Farm Mutual Automobile Insurance Company v. Jakupko.

In the case Richard Jakupko, his wife and two children were involved in a crash that resulted in spinal cord fractures and mental injuries to Jakupko. State Farm paid the plaintiffs $1 million under the umbrella policy and $100,000 under the automobile policy for under-insured motorist (UIM) coverage. The plaintiff's UIM limit was $100,000 per person and $300,000 per accident.

The plaintiffs brought action against State Farm for the additional $200,000 they believed was available under the UIM coverage, claiming Jakupko's family witnessed his injuries and suffered emotional distress that led to physical problems such as inability to sleep, loss of appetite, and fatigue. The court ruled that the physical manifestations of emotional distress constitute bodily injuries that are covered in the defendant's policy.

"While we certainly sympathize with the Jakupko family, the policy in question simply does not cover this kind of claim," Insurance Institute president Stephen Williams said. "We believe the court overreached in this instance."

"There is no precedent in Indiana for the appellate court's ruling," NAMIC's Regulatory Affairs Counsel Marsha Harrison stated. "This decision could open insurers up to lawsuits expanding the connection this court made."

PCI counsel Robert Hurns added, "The impact of this ruling is broader than this single case, as it has the potential to be damaging to insurers writing business in Indiana. This case could dramatically increase costs by expanding coverage beyond what the contract states."

The Indiana Supreme Court has not set a date for arguments in this case.

[Updated 12/21/06]Here is a story on the insurance industry effort, written by Charles Wilson of the AP. Some quotes:

Insurance industry trade groups are asking the Indiana Supreme Court to review an appeals court decision that awarded damages for emotional distress to the family of an injured man, saying it could set a costly precedent. * * *

State Farm paid $1 million under a personal umbrella policy and $100,000 under an underinsured motorist policy which had a limit of $100,000 per person or $300,000 per accident.

The family filed suit, seeking $200,000 more for family members' emotional distress that led to uncontrollable crying, sleeplessness, fatigue, loss of appetite and other physical problems.

A Hamilton Superior Court judge agreed that each family member should be covered and ruled in their favor. State Farm appealed, but the Indiana Court of Appeals last month upheld the lower court ruling.

The appeals court said that since the other family members were involved in the accident, their distress and suffering could not be treated as merely a result of Richard Jakupko's injuries.

"A claimant's direct involvement in the accident requires that a negligent infliction of emotional distress claim accompanied by physical manifestations be treated in the same manner as any other bodily injury claim," Judge Edward W. Najam Jr. wrote.

The ruling held that the $100,000 "each person" rule applied, subject to the $300,000 per accident limit, so the Jakupkos were entitled to the additional $200,000.

Marsha Harrison, regulatory affairs counsel for the National Association of Mutual Insurance Companies, said the ruling was without precedent in Indiana.

State Farm has appealed the ruling to the state Supreme Court, which has not yet decided whether to hear the case.

Updating this entry from yesterday, the ILB has been able to obtain, thanks to Marion Superior Court Civil Division, Room 5, a copy of the "verified complaint for mandate, for injunction, and for declaratory judgment" filed in State ex.rel. Lopossa v. Carl L. Drummer. Access it here.

[Updated 12/21/06]Advance Indiana has posted a good review of the contents of the complaint here.

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

Rita Quinn appeals the trial court’s order on her petition for modification of child support and for payment of college expenses from her ex-husband, Robert Threlkel, for their child, Elaine Threlkel. We affirm in part, reverse in part, and remand. * * *

We remand for further consideration and clarification of the post-secondary education expense order in this case in proceedings consistent with this opinion. We also reverse the trial court’s current formulation of Robert’s child support obligation and remand for recalculation consistent with our supreme court’s guidelines, commentary, and worksheets. We affirm the trial court’s decisions regarding the non-retroactivity of the modification of Robert’s child support obligation and the dependent tax exemption for Elaine.

Case Summary. Timothy Clancy appeals the jury verdict awarding Dianna and Robert Goad damages stemming from an accident where Clancy’s truck collided with Dianna’s motorcycle. The jury awarded Dianna $10 million for injuries including the loss of her left leg, and Robert, who witnessed the accident, received $1 million for his claim of negligent infliction of emotional distress. Clancy argues that both awards are excessive in light of the evidence presented at trial and that the trial court erred when it instructed the jury on the modified impact rule with respect to Robert’s claim. We find, as to both Dianna and Robert, that the jury’s awards for damages are reasonable in light of the evidence presented at trial. We also find that Robert sustained an “impact” for purposes of the modified impact rule when he chose to execute an emergency maneuver with his motorcycle in order to help his wife and that maneuver resulted in him falling to the asphalt and sustaining minor injuries. As such, the trial court was correct to instruct the jury on the application of the modified impact rule. We therefore affirm in all respects.

Ind. Law - More on: Indiana Lawyer James Bopp Jr. featured in Nov. ABA Journal

On Nov. 3 the ILB had an entry on Terre Haute attorney James Bopp Jr. being the focus of a cover story in the ABA Journal. Today Howard Greninger of the TH Trib-Star has a story headlined "Bopp turns cover boy for national legal issues mag." It begins:

TERRE HAUTE — It’s a nickname not heard since his fraternity days in Kappa Sigma while attending Indiana University, and needless to say, it brought a chuckle to James Bopp Jr. when he saw the cover of the November issue of the ABA Journal.

“I didn’t think there was anybody still alive that still remembered that nickname,” Bopp said Monday in a telephone interview. “I was truly honored that the work that I have done, and other people in my law firm have done with me, would be profiled and be the featured cover article. It was very humbling.”

Ind. Law - More on "Muncie attorney held on drug charge"

Updating this ILB entry from July 8th, the Muncie Star-Press has a story today headed "Lawyer's deal kept under wraps: No trial date for a Muncie attorney has been set on cocaine possession five months after arrest." Some quotes from the story by Nick Werner:

WINCHESTER -- A Muncie attorney who authorities said had cocaine in his possession after he was caught urinating in the middle of a state highway has apparently reached a plea bargain with the Randolph County prosecutor's office.

The terms of that agreement, however, remain sealed and unavailable for public inspection.

Donald K. McClellan, 51, rural Selma, was charged in Randolph Superior Court on July 18 with possession of cocaine, a class D felony carrying a standard 18-month prison term, and public intoxication, a class B misdemeanor that carries a sentence of up to six months.

Court records indicate McClellan's defense attorney, Michael J. "Mick" Alexander, and Prosecutor David Daly filed a plea agreement in that court on Dec. 8, the same day the case was scheduled for a pre-trial conference.

However, when a reporter for The Star Press a few days later inspected the McClellan case's court file, it did not contain the plea agreement.

County employees said the agreement was in the possession of Jay Circuit Court Judge Brian Hutchison, appointed special judge in the McClellan case on July 19 after Randolph Superior Court Judge Peter Haviza disqualified himself.

Hutchison, through a court employee, referred all questions to Prosecutor Daly, who declined comment on the issue of a plea agreement, citing court rules governing public statements concerning court proceeding. * * *

In some counties, including Delaware, plea agreements are typically kept unsealed in the same court file as other related documents and are generally open for public view.

A plea agreement that is not yet approved by the court, however, does not fall under public records law, Indiana Public Access Counselor Karen Davis said, and a prosecutor would have the legal authority to withhold the document.

Indiana Code states that the contents of a plea agreement are not part of the official record of a case unless the court approves the plea agreement.

Nonetheless, the proceedings in McClellan's case have followed a timeline atypical when compared to most felony cases in East Central Indiana courts.

Normally, when a plea bargain is filed, the court schedules a hearing, frequently within a month, in which the defendant pleads guilty to a crime and is then sentenced, assuming the judge accepts the terms of the agreement.

The scheduling of a pre-trial conference for next June could indicate that prosecutors have allowed McClellan, who is apparently a first-time offender, to enter a diversion program in which he would likely undergo counseling, pay fines and complete community service in exchange for the dismissal of charges against him.

Indiana law prohibits diversion programs for felony defendants and in McClellan's case the drug charge would have to be reduced to misdemeanor status.

Ind. Law - No surprises here: Fireworks law change proposed

Here is a very long list of ILB entires from last summer where various communities express outrage over the fireworks law passed last here, with headlines like: "Sadly, the Legislature doesn't have a Stupid-O-Meter on which to test new laws."

Today Lesley Stedman Weidenbener of the Louisville Courier Journalreports, in a lengthy story:

A handful of state senators are proposing to change the law regulating fireworks less than a year after the General Assembly voted to legalize their use.

Senate Bill 9, which will be considered by the 2007 legislature, would give cities and counties the authority to set some restrictions on the use of fireworks in their communities.

The bill's primary author, Sen. Vic Heinold, R-Kouts, said the proposal comes from the Valparaiso City Council, which sent him a resolution requesting more authority to set the hours and days when fireworks could be used.

Ind. Gov't. - Bill prohibiting serial meetings introduced in House this year

In the past two sessions, Senator Beverly Gard has introduced and had passed by the Senate a bill prohibiting serial meetings, only to see it die without even a committee hearing in the House. (See long list of ILB entries re "serial meeting" here.) This year, according to a report yesterday by Bryan Corbin of the Evansville Courier&Press, a similar bill has been introduced in the House. Some quotes:

A Southwestern Indiana legislator is trying to prohibit government boards from holding "serial meetings" n that is, circumventing the Open Door Law by gathering in small groups to conduct public business, behind closed doors and without having a quorum.

The best-known example occurred in September 2000 when the Indiana University board of trustees divided into two groups to discuss termination of then-Coach Bob Knight and avoided triggering the state public-meeting requirement.

State Rep. Russell Stilwell, D-Boonville, said he is introducing a bill to close the serial-meetings loophole. * * *

Stephen Key, general counsel for the Hoosier State Press Association, said serial meetings occur when members of a government board - such as a city council, school board or university trustees - subdivide into groups of less than a quorum, and then conduct business in private that legally ought to be conducted in public. To get around the law, one board member might meet individually with other board members, but not with the quorum of the entire board simultaneously, and yet make decisions collectively.

"Under the fashion they are doing it, they can look citizens in the eye and say, 'We didn't violate the Open Door Law because we never had a meeting,'" Key said. "Invariably, the discussion or subject matter of these serial meetings is information that if they had a quorum present at one time, it would have to be done in an open meeting where the public could observe the discussion."

When members of the IU board of trustees met informally with then-IU President Myles Brand at his home Sept. 9, 2000, and discussed Knight's possible termination, Brand had four trustees gather in one room, and four in another. Brand later testified in a lawsuit that he deliberately gathered fewer than a quorum and briefed the two groups separately, in order "to exclude any impropriety with respect to the Open Door Act," court records said.

In a decision on the trustee lawsuit last June 2, the Indiana Court of Appeals ruled that because there was not a quorum, the trustees' gatherings did not constitute a "meeting" under the Open Door Law, and so were not prohibited. But the appeals court found the IU trustees acted "in direct contravention to the public policy behind the Open Door Law," which requires that conclusive government action take place in public.

Stilwell's bill aims to close that loophole. It would apply not just to public university trustees but to other governmental boards, such as town councils, school boards and city or county councils. "That doesn't mean they can't caucus or chat with other members of the commission; it means they cannot have serial meetings," Stilwell said.

If the loophole were closed, Key said, then the public would have legal remedies under the Open Door Law if a serial-meeting violation occurred: Citizens could file a lawsuit in court and ask the judge to declare the board's action illegal, seek an injunction to undo the action or prohibit further violations, and seek attorney's fees, Key said.

Stilwell's bill is similar to one authored the past two years by state Sen. Beverly Gard, R-Greenfield. Gard's proposal passed last session in Republican-controlled state Senate, 48-2, but did not receive a hearing in the Indiana House. Stilwell, whose party retook control of the House in the Nov. 7 election, is optimistic that his serial-meetings bill will get a House hearing this year.

"IDEM's answer gives false idea of county power to ban hog farms" is the headline to a story in Tuesday's Madison Courier, written by Peggy Vlerebome:

A county's power to regulate confined animal feeding operations does not include banning them altogether, despite what was said at a public meeting Monday night.

Representatives of the Indiana Department of Environmental Management answered written questions submitted before and during a public meeting at the 4-H Fairgrounds. One question was whether a county can prohibit all confined animal feeding operations. The answer was yes.

Afterward, County Commissioner Julie Berry, chairman of a county advisory committee studying possible regulations for such operations in Jefferson County, and committee member Mark Goley approached the IDEM representative who had given the answer. Berry asked him to explain what he meant since the committee has received legal advice that an all-out ban would violate the state's right-to-farm law.

It turned out that he was referring to temporary bans imposed by counties through moratoriums like the one in place in Jefferson County, which expires Feb. 4. "That is altogether different" from a prohibition against confined animal feeding operations, Berry told him.

The IDEM representatives, who work in the Office of Land Quality, conducted the meeting in Jefferson County as part of the process of reviewing an application for a permit to operate a 4,000-hog feeding operation near Kent.

The IDEM representatives said they didn't know when a decision will be made on the permit.

From the answers to questions, the audience of about 100 people learned that the proposed hog feeding operation in Kent has lined up more land than the state requires for the disposal of manure on cropland, and that the manure holding tank underneath the hog barn will have more capacity than the state requires.

The audience also was told that the state does nothing to regulate odors, but the U.S. Environmental Protection Agency will conduct a two-year study of odors and then decide whether states should be involved in controlling them.

IDEM's sole interest in regulating confined animal feeding operations is to guard the state's water supplies, both groundwater such as wells and surface water such as creeks, the audience was told.

The audience also learned that IDEM inspects feeding operations about every five years. The operator of the feeding operation must keep records for the inspector to review, the IDEM representatives said.

Tuesday, December 19, 2006

INDIANAPOLIS – Indiana House Speaker B. Patrick Bauer (D-South Bend) and Indiana Senate President Pro Tempore David Long (R-Fort Wayne) announced today that John Rowings of Indianapolis has been named acting director of the Legislative Services Agency, effective January 1.

Rowings replaces Philip “Satch” Sachtleben, who has left LSA to serve as Associate Vice President for Governmental Affairs at Ball State University.

“House Republican Leader Brian Bosma and I agree that it will be difficult to replace the experience that Satch has provided for lawmakers for most of the past three decades,” Bauer said. “However, as we look for a permanent replacement, we are fortunate that John Rowings has agreed to serve as acting director for LSA. John has been a valued worker at LSA for close to 25 years, and his knowledge of the legislative process will ensure that the upcoming session of the Indiana General Assembly will run smoothly.”

Long added, “I have great confidence in John’s ability to step in on an interim basis to lead LSA in its important work, which is vital to the successful operation of the Indiana General Assembly. I can speak for both myself and Minority Leader Richard Young in saying that John has the full confidence of both the Republican and Democratic members and staff of the Senate, as well as the complete respect of the entire LSA staff.”

Rowings, 53, began working at Legislative Services in 1978. Since 1998, he has served as the director of bill drafting and research for the agency.

He is a 1975 graduate of Brown University. In 1978, he received his law degree from Indiana University-Bloomington.

The Legislative Services Agency handles bill drafting and research for the Indiana General Assembly. It consists of three offices: Bill Drafting and Research, Code Revision and Fiscal and Management Analysis.

Bauer and Long said legislative leaders would begin a search for a permanent director early in 2007.

Ind. Decisions - Beware, again: 7th Circuit sanctions attorney

Recall the discussion late last month about the 7th Circuuit opinion in Smoot v. Mazda Motors, where, to quote an ILB reader who listened to the oral argument, "Judges Posner and Easterbrook flay both counsel like they were pulling the wings off of a fly"? (See this ILB entry from Nov. 29th.) Today, the fine blog, Decision of the Day ("a daily sumary of the best and worst of federal appellate decisions"), reports:

I’ve blogged before about lawyers in the Seventh Circuit getting bench-slapped left and right for making commonplace mistakes. Most recently, the Court cracked down on attorneys who failed to submit a proper jurisdictional statement. Today, the Court decides that its next target will be attorneys who fail to file a proper appendix. Its first victim is an attorney in a criminal appeal who failed to submit a copy of the judgment being appealed and a transcript of the challenged portion of the decision, as required by the rules. The attorney then incorrectly certified that he had submitted all the required documents. For that, the attorney earns a $1000 fine.

The case is U.S. v. White, the very same case the ILB reported on earlier today (see here) - the one about the Gary politician getting his hand caught in the cookie jar. From p. 11 of the ruling:

The appendix included in the appellant’s
brief contained a mere five pages of Indiana statutes.
There was no copy of the judgment being appealed.
There was no transcript of the rationale given by the
district court in the challenged oral decision. The appellant’s
counsel then compounded these errors by incorrectly
certifying to this court that the appendix complied
with the procedural requirements.

The Federal Rule and our Circuit Rule are not created
for the purpose of imposing frivolous requirements on
attorneys who are already busy. The purpose of these
rules is to ensure that the court has “all necessary documents
before it as it considers the parties’ arguments and
renders its decision.” * * *

We are not without remedies in this matter. In the past
we have dismissed the appeal. * * *

Ordering the appellant to resubmit the brief seems
counterproductive in this case. * * *

We are left then with the question of whether the court
should fine the appellant’s attorney for violating Rule 30.

In Hill we fined appellant’s counsel $1000 for failing to
comply with Rule 30. In accordance with the Hill line of
cases we will impose a fine of $1000 on counsel for White
unless they can show that such a fine would be inappropriate
under the circumstances of the case.

Judge Thomas Newman’s failure to do his duty has brought the judiciary into disrepute. We consider here the disciplinary consequences of his failure. * * *

As a result of Respondent’s failure to execute an appropriate order for Dawson’s release and to provide proper supervision and instruction to his court reporter, Dawson unnecessarily spent over one year incarcerated with the DOC and one year on supervised parole. In several written and oral statements concerning this matter, Respondent failed to exhibit meaningful remorse for the effect that his neglect had on Dawson’s liberty and, instead, blamed his court reporter, the DOC, and the Court of Appeals. However, Respondent now takes full responsibility for both the unfortunate events of the Dawson case and Respondent’s failure (until now) to accept fault for those events. He offers his apology to Dawson and his family, to his fellow judges, to the Commission, and to the Court. * * *

Respondent’s conduct reflects discredit on him and the Indiana judicial system. It goes without saying that a trial court judge is duty-bound to carry out the orders of a reviewing appellate tribunal. That duty is at its highest when an appellate remand order affects the substantial rights and interests of a party under the trial court’s control. When a trial court judge fails in this duty, the appellate relief secured by the party evaporates. Dawson can never regain the time and freedom that the Court of Appeals’ opinion granted him.

A public reprimand is a blemish on a sitting judge’s reputation, adversely affecting the public’s evaluation of the judge’s performance in office. It is not the severest sanction we could impose, and we would have been inclined to impose a harsher penalty had there not been an agreement with the Commission. Because Respondent has (albeit belatedly) accepted responsibility for his actions, has apologized to Dawson and his family specifically and to the judicial community generally, and has agreed to accept, with the Commission’s consent, a public censure in lieu of a further proceedings, we accept the parties’ Conditional Agreement for Discipline. Thomas Newman, Jr., Judge in the Madison Superior Court No. 3, is hereby reprimanded, and the costs of this proceeding are assessed against him.

This terminates the disciplinary proceedings relating to the circumstances giving rise to this cause. Shepard, C.J., and Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

Ind. Decisions - Proposed Pines transfer station update

Our most recent earlier entry on the Pines transfer station in NW Indiana was posted Oct. 12 and reported that plaintiffs plan to appeal the environmental law judge's opinion. Access the ruling itself here, from this Sept. 18 ILB entry.

VALPARAISO | Time might be running out on an unpopular trash transfer station near the border of Porter and LaPorte counties.

With just days to go until its end-of-the-year deadline to get its land deeds and permits in order, Great Lakes Transfer LLC will take its case before the LaPorte County Board of Zoning Appeals tonight.

LaPorte County in March gave Great Lakes Transfer LLC owner Sean BIieden a special zoning exception until the end of the year to complete the land purchase and to renew its expired building permit. Porter County, which has exclusive jurisdiction over the roadway, now refuses to grant a driveway right of way off LaPorte-Porter County Line Road and to upgrade the road for loads of more than 10 tons. The site is 1,200 feet east of County Line Road near The Pines, just south of the Amtrak railroad tracks.

"We would hope that LaPorte County won't grant an extension, but that is their jurisdiction," said Porter County Attorney Gwenn Rinkenberger. "Our position on the road will stand either way."

Local environmentalists oppose the site because it is within a mile of Mount Baldy and in an area near The Pines that is "desperately trying to promote tourism," said Sharon Carnes, a member of the citizen group Rational, Residents Against Trash In Our Neighborhood Alliance, which has been fighting the transfer station for nearly three years. * * *

Complaining that the Indiana Department of Environmental Management had issued permits without considering local opposition, Porter and LaPorte County, along with the towns of Beverly Shores and The Pines, in September lost an appeal to block the 5-acre transfer station. The parties then filed another appeal in Marion County Superior Court. Another decision may be forthcoming late this spring or this summer, Rinkenberger said.

The LaPorte County Board of Zoning Appeals has made it clear it will not grant a building permit until the appeal is settled and until Great Lakes gets its driveway permit from Porter County, said Shaw Friedman, LaPorte County attorney.

"They can get special exception extensions until the cows come home, and they still won't get the building permit they need to move forward," Friedman said.

GOSHEN -- Mayor Alan Kauffman has asked the Goshen City Council to remove discussion of closing the City Court from tonight's agenda.

With closure not being discussed before the end of the year, the City Court will continue to operate for another four years.

"It is apparent from recent discussions with council members there is inadequate consensus to close City Court at the end of 2007," Kauffman said in a statement. "At most, there could be four votes to close the court. Rather than risk a four/three vote, even if the vote were to be bipartisan, I am asking that the item be removed from the agenda. I prefer there be stronger agreement."

Kauffman said he still plans to work with the council and the county to reduce or eliminate the property tax subsidy funding the court.

But the lawsuit says Drummer, the longtime trustee, hasn't provided sufficient office space, equipment or supplies. He also has interfered in hiring court staff and won't pay fees owed this year to a pro-tem judge and an interpreter, the lawsuit says; the pro-tem judge, whose name is not provided, sits in for Lapossa during some sessions and is owed $2,200.

The Center Township Board approves the court's budget, but the lawsuit says Drummer has not consulted the court before presenting its budget.

Lapossa's suit requests a court order barring Drummer from interfering in those areas and an order to pay the fees. The state of Indiana also is listed as a plaintiff, and the township board is listed as a defendant.

[Updated: This looks to be an interesting action, bearing similarities to judicial mandates initiated by county courts. If any reader has access to the filing, the ILB would be pleased to post it.]

Ind. Decisions - 7th Circuit issues one Indiana ruling today

The defendant appeals a conviction
for multiple counts of mail fraud, wire fraud, and
money laundering. The underlying fraud alleged in the
indictment was a failure to disclose a potential conflict of
interest while serving as an elected public servant in
Gary, Indiana. The defendant argues on appeal that the
district court erred by preventing the defense from presenting
its theory of the case to the jury and by committing
various sentencing errors. Because we find no error, we
affirm.

Here, from the opinion, is some of the historical background:

At its heart, this case is about a corrupt politician
who got caught with his hand in the cookie jar. Robert
White was an elected official in Gary, Indiana, serving on
the city’s Common Council. In the Summer of 2003 there
was a drowning in Gary at the beach where Lake Street
arrives at the Lake Michigan shore. Sometime shortly
thereafter, White met with Gary’s Superintendent of
Parks and the conversation turned to the need to construct
a fence to prevent children from unauthorized
access to the beach in that area. The drowning, along
with the apparent ease with which children were able to
walk from a nearby school to the shore, made the project
a prime candidate for an emergency contract—that is, a
contract that would not be subject to competitive bidding
or other inconvenient scrutiny.

Randy E. Baxter v. Amy S. Baxter (NFP) - "We hold that the evidence does not support the dissolution court’s finding that the parties have $78,000 in equity in the marital residence. The court found that in addition to the $348,000 mortgage debt on the marital residence, the parties owe $50,000 to Husband’s mother, which “shall be applied towards the debt on the marital residence.” Appellant’s App. at 59. Because the marital residence appraised at $400,000, the total equity in the house is $2,000. We reverse the dissolution court’s $39,000 award to Wife and remand with instructions to split the $2,000 home equity equally between the parties. Reversed and remanded with instructions."

The Indiana Court of Appeals has vacated an armed robbery conviction against a Logansport man accused of being an accomplice in a West Lafayette robbery and shooting.

Insufficient evidence exists to support a conviction for robbery resulting in serious bodily injury against Cory M. Salinas, 21, the appeals court ruled on Tuesday.

Kirk Freeman, the Lafayette attorney who represented Salinas at a trial in January, said that if the Indiana Supreme Court decides not to hear an expected appeal by the Indiana attorney general, Salinas could be released from a 26-year prison sentence. Lafayette attorney Bruce Graham represented Salinas on the appeal.

Ind. Courts - “I look forward to having people just call me Bob”

LaPORTE - On Friday, Robert Gilmore spent the evening at Heston Hills Banquet Center dining, dancing, celebrating and reminiscing about his 37-year law career, 12 spent as LaPorte County Circuit Court Judge.

“I look forward to having people just call me Bob,” Gilmore, 62, said during an interview in his soon-to-be-empty office. With three more cases to decide before officially leaving the bench, Gilmore talked about his post-judicial retirement lifestyle, lightheartedly referring to it as “Bob and Barb's Excellent Adventure.”

The Gilmores will be moving to South Carolina, about a four-hour drive from his parents' home. Robert Gilmore Sr., 86, was a long-time Michigan City pediatrician who continues to golf and only recently began using a golf cart rather than walking and carrying his bag, the judge said.

He claims to have pursued a career in law rather than medicine, like his father and grandfather did, because he didn't do well in chemistry. He found his niche, getting elected to the part-time position of Michigan City Court judge at the age of 24 while still in law school. Less than four years later, he ran for Michigan City Common Council and, he said, “got killed” by his opponent.

Gilmore says he's always been interested in politics but prefers not to be heavily involved in it. In fact, he opposes the tradition of having judges seek office through the political party system when they are expected to make impartial rulings once elected.

His love of the law is obvious when he talks about the Circuit Court judge's role in handling a range of cases, from adoptions and guardianships to death penalty cases. * * *

In January, Tom Alevizos, a Michigan City lawyer and deputy prosecutor, will take over as judge of the LaPorte County Circuit Court. What advice would Gilmore give to him?

“I would tell him to do the same thing I did,” Gilmore said. “Every day I walked into the courthouse and said, ‘'Remember where you came from.' Try not to be arrogant or disrespectful. Treat people like human beings and try not to embarrass them. Listen to the evidence and remember that God did not anoint you. I'm no better or worse than anyone appearing as a litigant.”

Courts - Can public records be "too public"?

Has the internet made public records too public? Should you have to dig -- make a trip to the courthouse in a distant county, or a number of trips around the countrry -- to assemble the public records on a specific subject? Here is an article from yesterday's Pittsburgh PostGazette, written by Caitlin Cleary, showing the split between advocates of pubic records, and those who think records can be "too public." (Thanks to How Appealing for the link.) Some quotes:

Be advised, say employment attorneys and privacy advocates: With new rules allowing the public instant online access to your Pennsylvania court records, that youthful indiscretion or mistaken arrest may no longer be relegated to dusty file folders in your county courthouse, forgotten and, for all practical purposes, invisible.

Instead, such information is just a few keystrokes away from any potential employer, landlord, or simply curious person with Internet access and a hankering to perform a do-it-yourself background check.

And even if the charges against you were later dropped, even if the arrest never led to a conviction, that legal snafu could come back to haunt you as you apply for jobs, housing or credit.

The online release of this pre-conviction information -- and the potential harm it poses to people who may have been charged with a crime but were never convicted -- is only one aspect of the state's new court records policy. But it was a stubborn point of criticism during the drafting of the new policy, and remains a major source of concern to groups such as the American Civil Liberties Union of Pennsylvania. They argue that the potential for misuse, or even abuse, of the system is great.

"We believe that a fundamental principle of the American judicial system is 'innocent until proven guilty,' " said Larry Frankel, legislative director for the state ACLU. "One should not have to suffer the consequences of being mistakenly arrested. The dangers and the risks involved to a person who was incorrectly identified, or in the wrong place at the wrong time, can have consequences to their housing, employment, their status in the community."

The rules, which take effect Jan. 1, were developed by the Administrative Office of Pennsylvania Courts to govern which court records should be available to the public electronically over the Internet. Pre-conviction, or "police blotter" information has been public since 1980, available in hard copy for perusal at the courthouse, but the amount of effort a person had to exert to travel to the courthouse and pore through case files resulted in a kind of "practical obscurity."

The new policy represents a change not in what information is deemed public, but in the method of access to it.

From the end of the story:

The committee did not work in a vacuum in coming to this decision, said Mr. Heinz. They surveyed the 16 other state court systems and federal judiciary that provide electronic access to records, and found that 14 of the 16, plus the federal system, do allow the release of pre-conviction information.

Connecticut decided against it, in part because of youthful offenders whose paper court files eventually would become unavailable to the public based on the disposition of their cases. If they were on the Internet, those records could remain available.

According to the state court system, Minnesota's decision to withhold electronic pre-conviction data was based on "the fact that there is a high percentage of African-American citizens who are arrested for various crimes that result in a very low conviction rate." It was believed that making such information public would harm those who "will eventually be found not guilty of any crime." It is unclear how integrated the online Pennsylvania court records system is with popular Internet search engines. Mr. Heinz wasn't sure if a simple Google search of an individual's name would yield specific Web docket sheets, or a link to the portal for the Unified Judicial System of Pennsylvania.

He pointed out that pre-conviction information has been made available on the Pennsylvania Magisterial District Judge Automated System for the last 12 years with no reported problems.

Earlier this week we had entries on the retention of court records, in Kentucky and in Indiana. Today's issue deals with access to court records, covered in Indiana by Administrative Rule 9.

Ind. Gov't. - More on looming public-sector retiree heath care crisis

The NY Times today has a long story about the how governmental units nationwide are facing challenges in paying health care costs for government retirees. This is the fifth in a series "examining the actions of state and local governments that have left taxpayers with large unpaid bills for public employee pensions.."

Indiana is not among those mentioned. However, the story points up the impact of the new accounting rule (requiring "government entities -- from cities to universities to school districts -- to calculate and report how much they owe for health care costs and other post-employment benefits for their present and future retirees' according to this article).

From today's NY Times story:

The troubles foreshadow broader government problems — not just in those that combined their pension and retiree medical accounts — as states and localities that never estimated the cost of their retirees’ health care move to do so now.

Donald Rueckert Jr., senior vice president and an actuary with Aon Consulting who has been helping state and local governments with these calculations, said that when all the numbers are done, under a new accounting rule, the governments’ total retiree health bill will probably turn out to be about $1.1 trillion. * * *

Now that the new accounting rule has forced New York, along with other state and local governments, to look ahead, the city has just published the total estimated future cost of its retirees’ health care: $53.5 billion in today’s dollars.

Approximately $12.5 million has been spent on the Greene County courthouse addition/renovation project to date, Greene County Board of Commissioners President Bart Beard told The Daily World on Friday.

Beard said about $500,000 remains in the construction account and that's not enough to finish the project.

Two weeks ago the commissioners, by a 2-0 vote, approved a request to ask the Greene County Council to approve an additional $4 million in bond anticipation notes - known as BANs - to provide funds to complete the project.

Today in a 4 p.m. meeting at the courthouse, the Greene County Council is expected to act on that request.

If approved by the county council, the county would issue additional BANS, which is a form of financing like a line of credit, where only the amount needed is borrowed. The county will pay only interest on what is borrowed until the civil suit litigation currently pending against the design team, general contractor and related parties is resolved. The money received in litigation will be used to re-pay the BANS, according to board of commissioner's attorney Marilyn Hartman.

The $4 million requested will be used to fund approximately $2 million in additional construction costs, $1.2 million in additional engineering, project management and related construction costs; and $800,000 in litigation expenses.

The $4 million additional cost will drive the overall cost of the project up to about $16.5 million - at least $6 million above the original contract issued four years ago.

At a Dec. 5 commissioner's meeting, Rich Starkey with the Indiana law firm of Barnes and Thornberg, which is charged with the bond sale on the construction project, cautioned the commissioners against stopping the project at this juncture. He said if the project is stopped the county would default on the bonds causing the county's credit rating to suffer greatly.

A similar extension of credit for the project was approved in February 2005, when the county council approved the issuance of $2.5 million in BANS to cover costs required to repair the structural damages to the south stairway and the foundation of the courthouse and related delays.

Environment - Wood-fired boilers; Great Lakes firing range plan

Wood-fired boilers. Wood-fired boilers, a topic on which the ILB has posted entries once or twice before, is (are?) the subject today of a lengthy NY Times report. Some quotes:

Their owners proudly proclaim that they reduce dependence on foreign oil — and save thousands of dollars on heating bills each year.

Neighbors say that they create smoke so thick that children cannot play outside, and that it seeps into homes, irritating eyes and throats and leaving a foul stench.

They have spawned a rash of lawsuits and local ordinances across the country. A report last year by the New York attorney general’s office found that they produce as much particle pollution in an hour as 45 cars or 2 heavy-duty diesel trucks. * * *

And next month, the Environmental Protection Agency expects to issue guidelines for states to follow in regulating the use of wood boilers. The industry, too, is working with the agency on new standards for boilers.

“These machines sound good when you buy them, but look at all the health problems you cause,” said Edward J. Nowak, who is suing his former neighbor in Chicopee, Mass., for creating a “public nuisance” by installing a boiler in his backyard.

“We taped our windows up with plastic, and we tried to be a nice neighbor, but it just got to the point where it was impossible,” said Mr. Nowak, who is retired. He said he had to move because of the constant smoke.

“People are calling up their state and federal officials in unprecedented numbers because they don’t know what to do,” said Philip R. S. Johnson, a senior scientist at the Northeast States for Coordinating Air Use Management, a nonprofit association of air quality agencies in New York, New Jersey and New England. “I am getting so many calls from people complaining about their children getting sick and the nuisance of the smell, and it’s just brutal to listen to their stories.”

Owners of the devices say the complaints are unfair. Peter Muller, a landscaper in Stony Point, N.Y., who bought his boiler three years ago, calls them “the greatest thing since sliced bread.”

“Every day you turn on the news they’re saying lower your dependence on foreign oil,” said Mr. Muller, who gets inexpensive wood through his business and estimates his savings at $400 to $600 a month in the peak heating season. “Now I have a renewable energy source, and people are complaining.”

Since 2001, at least 50 towns or counties in New York State have instituted laws regulating the boilers, including Suffolk County, which in November effectively banned them by prohibiting their operation within 1,000 feet of a home or school.

Vermont, in the 1990s, and Connecticut, two years ago, enacted strict regulations on where boilers can be used. Washington State banned them outright, and villages and health boards in Maine, Wisconsin, Michigan and Massachusetts are dealing with hundreds of complaints from people who say wood boilers are making their homes feel like campgrounds.

The boilers, which look like tool sheds topped by 12-foot smoke stacks, were originally designed for rural areas where open space — and wood — are plentiful. They generally cost about $5,000, and work by burning wood to heat water that is pumped through underground pipes to a home’s plumbing and heating systems.

Common complaints include lung inflammation, persistent coughing and trouble breathing, not to mention foul odors. Because the boilers operate under low-oxygen conditions and smolder constantly, they produce far more smoke than traditional indoor stoves — about a dozen times more, several studies have found. They also produce 4 to 12 times the amount of fine particles, which can easily move into the lungs and be absorbed into the bloodstream, causing heart and respiratory problems, according to researchers.

Great Lakes firing range plan. The plan has come to naught, according to this story today in the Chicago Tribune. Some quotes:

WASHINGTON -- The U.S. Coast Guard said Monday it was withdrawing plans to periodically close 2,500 square miles of the Great Lakes for live machine gun-firing exercises, responding to safety and environmental concerns.

The plan had been criticized by several U.S. and Canadian mayors, business leaders and environmentalists who said it could be unsafe and disruptive. Environmentalists said they worried about the consequences of lead shots being deposited in the Great Lakes.

"The Coast Guard appreciates the thoughtful comments we received and we will work with the public to ensure the Coast Guard can meet any threat to public safety or security," said Rear Adm. John E. Crowley, Jr., commander of the Ninth Coast Guard District in Cleveland.

"We are committed to addressing the concerns that training be safe, preserve the diverse uses of the Lakes, and protect the environment," he said.

Crowley said he would "take the time to get this right" and not conduct live-fire training in the lakes to meet non-emergency training requirements. He said he planned to reconsider public concerns and was committed to finding "environmentally friendly alternatives" to lead ammunition.

Ind. Courts - Putnam County Council nixes third court

The Greencastle Banner Graphic reports today, in a story by Lisa Meyer Trigg that begins:

A request to create a third court in Putnam County to ease judicial congestion has died at the hands of the Putnam County Council.

Local attorneys and judges presented their case to the council and the county commissioners during a joint session of those boards Friday, the final day for legislation to create the court to be submitted at the Indiana Statehouse. If the third court was not created by the legislature in 2007, it could not go through the 2008 election process for a judge to take the bench in 2009. The next opportunity for election will be 2010, with the judge taking the bench in 2011.

Commissioners Dennis O'Hair, Gene Beck and Kristina Warren had heard the plea from Judges Robert Lowe and Matt Headley just days earlier. Council members Don Walton, Darrel Thomas, Mitch Proctor, Larry Parker and Jay Fogle also received supporting information Friday from attorneys Jeff Boggess and Del Brewer.

The courts are now so overloaded with cases, Boggess said, that the civil matters to be taken over by a third court do not now receive the prompt attention they need.

“There is a tremendous societal cost for not having the things in government we need,” he said. The overloaded courts affect people who are owed child support, who pay too much child support, small businesses that are owned money, landlords and tenants with disputes, and others who need a timely resolution to their cases.

On the criminal side, he said, the verdict in an attempted murder case is under attack in the higher courts due to the time it took to get that case through the local court system. The local decision may be overturned because the case could not be tried within the time limit.

“I understand it is expensive,” Boggess said of creating the third court, “but I ask on behalf of the public for you to consider funding it.”

Brewer, who worked 22 years in the prosecutor's office, said things have changed considerably since 1979 when he conducted the county's business from his own personal office. The number of criminal and civil cases has grown, but the resources to handle those cases has not kept pace.

Judge Headley urged the county leaders to find the resources to pay for the new court. He and Judge Lowe had requested that the new court take over the first floor courthouse space now occupied by the adult probation department.

Headley presented cost estimates for the renovation of the probation space, and also the personnel costs expected with the addition of the court. He estimated the cost of operating the court at $170,000 annually, renovation costs at around $100,000, and one-time equipment costs at $80,000.

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

Richard L. Friend v. State of Indiana - "Finally, the State does not argue that, even if the warrantless search was constitutionally impermissible, the admission of the evidence recovered from Friend’s car amounts to harmless error. Indeed, without that evidence, the State presented insufficient evidence to support Friend’s conviction. Therefore, we reverse and order the trial court to vacate his conviction for Class D felony possession of methamphetamine."

Ind. Gov't. - More on last year's Toll Road lease/sale

A reader has pointed the ILB to the latest issue of Mother Jones, which has a number of stories on highway privatization in the U.S. See the entire list of stories here (the link should be good for at least this month), and the emails featured here in "The Fix is In? Email Evidence from Indiana's Privatization Deal.".

In this entry last week on the records purge in Kentucky the ILB asked whether the same thing could happen here in Indiana.

A knowledgeable source has written to say: "We will not be facing the same problems as prosecutors and judges in Kentucky are right now." More:

The Indiana policy on court records retention is found in Administrative Rule 7, which has gone through numerous and extensive revisions. The most recent amendments took effect January 1, 2006, and they were extensive. Special training sessions had to be held for County Clerks all over the state.

Note this caution from Rule 7, far different from the Kentucky position:

It is critically important that these schedules be carried out exactly as approved since this is your legal authority to do so, and only for the records so listed. Once a record is destroyed, its information is lost. Do not assume that the record under consideration is the record actually authorized for destruction. You must compare both the title and content before a record series can be destroyed. Work in a spirit of caution. If in doubt, save until you can get advice from the Division of State Court Administration or the Indiana Commission on Public Records.

To sum it up, it looks like most Indiana court records of any import are to be permanently maintained, either in the original or on microfilm.

Law - Florida bar debating how to regulate law firm internet sites

Law. com is reporting this story from the Florida Daily Business Review:

Because the Bar board of governors deadlocked on proposed new Web site rules at its monthly meeting on Dec. 8 in Key Biscayne, law firm sites could be completely unregulated as of Jan. 1 -- unless the Florida Supreme Court takes action. The board tabled its discussion until next month.

The impasse reflects the legal community's uncertainty and confusion about the brave new world of marketing to consumers via the Internet. Lawyers realize that instead of turning to the Yellow Pages, the public increasingly uses online search engines and other Internet tools to find needed goods and services.

The Florida Bar long has had some of the toughest rules in the nation on how lawyers advertise, and some of its leaders want to extend those stringent rules to Internet communications. But are law firm Web sites the same as direct mail, broadcast and print advertising? And should consumers be at least partly limited in what types of information they can access about a law firm when they do a specific Internet search?

The deadlock at the Dec. 8 meeting seemed to reflect both a disagreement about basic policy as well as confusion about the technological aspects of implementing such rules.

On the morning of Dec. 8, after a lengthy debate, the Bar board rejected a proposal to subject law firm Web sites to the Bar's full advertising rules. Those rules prevent attorneys from offering statements on the quality of their legal services and past results, providing testimonials and offering "manipulative portrayals."

Then, late Friday afternoon, the board narrowly rejected a revised proposal to subject only law firms' home pages to the full advertising rules. The revised proposal would have allowed firms to provide testimonials and statements about quality and results on pages inside their Web site as "information on request." * * *

In 1999, Florida became one of the first states to establish Web site rules for lawyers. Previously, the Bar applied its general advertising rules to the Web.

Currently, the Web sites of Florida Bar members can cite past results and make statements that characterize the quality of their legal services. Unlike lawyer advertisements, however, Web sites don't have to be reviewed by the Bar.

But that was expected to change at the start of 2007, when new advertising regulations approved by the state Supreme Court go into effect. The court adopted rules requiring lawyers to clear television and radio ads with the Bar 15 days before they hit the airwaves.

Previously, lawyers had to file their ads with the Bar before they ran, but the ads were allowed to run while the Bar reviewed them. Under that system, by the time the Bar board ruled that an ad violated the rules, it often was too late to do anything about it.

In addition, the new rules require out-of-state lawyers who advertise in Florida to follow The Florida Bar's advertising rules. The Supreme Court did not issue an opinion on Web site rules because the Bar had a task force examining the subject.

But since the Bar board could not agree on the rules Dec. 8, there could be no rules as of Jan. 1 unless the Supreme Court continues the current partial rules or develops new rules on its own, said Elizabeth Tarbert, ethics counsel for the Bar. The Bar has filed a motion for the high court to reconsider.

Florida Supreme Court spokesman Craig Waters said he does not know when the justices will rule.

Ind. Law - News from Jay and Kosciusko County Prosecuting Attorney’s Offices

PORTLAND -- Newly elected Jay County Prosecutor Robert Clamme has announced he will serve in that position on a full-time basis.

Clamme, who will take office Jan. 1, will be paid $113,00 annually, but that entire salary will be paid by state government.

Outgoing Prosecutor Brad Burkett, who served on a part-time basis, this year received $67,800 from the state and $14,175 from the county.Kosciusko County.A story from last Thursday's Warsaw Times-Union reported:

Warrants for the arrest of a Warsaw man are being requested after an incident at Mad Anthony’s Lake City Tap House Wednesday night.

According to a report from the Warsaw Police Department, warrants have been requested for the arrest of Matthew Shively, 25, Buffalo Street, Warsaw, for public intoxication, criminal mischief and criminal recklessness. * * *

Shively, an assistant in the Kosciusko County Prosecuting Attorney’s Office, was suspended this morning pending a review of the case.

Ind. Law - Death of Attorney Mickey M. Miller of New Haven noted

Mitch Harper of Fort Wayne Observed has brought to our attention the death of Attorney Mickey M. Miller of New Haven, Indiana. He notes "Mickey practiced in Fort Wayne, was the husband of Jeanne Miller - the first woman to head the Indiana State Bar Association, and the father of attorneys Carl Miller, Ward Miller, and the late Margie Miller Hutchins. Carl practices in New Haven and Ward practices in Fort Wayne. Margie was licensed and practiced in Colorado until her death." See Harper's entire entry here, along with the Fort Wayne Journal-Gazette obit.

Sunday, December 17, 2006

Ind. Courts - Hamilton County courts to get video upgrade

With two more rooms in the Hamilton County Government & Judicial Center receiving improved video equipment in the next several months, it will save the county money in the long run, according to the county’s court administrator.

“The video equipment installed by Ameritech in 1997 was made obsolete by a software upgrade last year,” Ollie Schierholz, Hamilton County’s administrator of courts, told the Hamilton County Board of Commissioners this week. “The only vendor in the state of Indiana that will install the equipment is SBC so with that I hope that you will approve this proposal.”

The commissioners did just that, approving the addition of the video software, which will be used during teleconference hearings with offenders.

Schierholz said it will cost about $150,000 to complete the work in the two third-floor hearing rooms. The upgrades will mean three rooms in the building will have the new video equipment, he said. As of right now, only the magistrate courtroom has the video conferencing capability. * * *

Schierholz also advised the commissioners that by adding the upgrades, it will save the county the cost of transporting offenders plus paying the deputies for their time, gas and transportation time.
The three-member committee then unanimously approved the proposal.

Ind. Courts - Longtime federal prosecutor, David Miller, retires

Dionne Waugh of The Fort Wayne Journal Gazette has a long story on David Miller, chief assistant U.S. attorney in Fort Wayne, who retired Friday. A quote:

For years, he worked seven days a week. Even when his own health was in peril, Miller worked through it.

It would take a family crisis to make him realize that work wasn’t everything.

After 27 years as a federal prosecutor, Miller, the chief assistant U.S. attorney in Fort Wayne, retired Friday.

“You start to realize how much life you have in front of you,” the 65-year-old said, his deep, booming voice belying the gray that’s crept into his close-cropped hair. “It’s time to move on. I didn’t want to stay so long till I was not effective anymore.”

Saturday, December 16, 2006

ELKHART -- After 28 years, Judge Stephen Platt left the bench this week, though he hopes to come back occasionally.

As he looks back over nearly three decades as a judge, Platt sees a growing need for society to find better, more creative ways to address the growing number of criminal cases.

"It's just hard because there really isn't any new avenue," Platt said. More and more people get funneled into a system that hasn't grown much.

"Nothing changes," he said. "We used to get 100 cases a year, now we're getting 300, 400 a year, and that's just the major crimes," he said of Superior Court 2. "That takes a lot of work. It's getting worse every year."

He praised his staff for helping him cope with the increasing work load and helping keep things running.

Platt lost his re-election bid for the position as judge of Elkhart Superior Court 2 in a primary race earlier this year. Elkhart attorney Steve Bowers won the primary contest and ran unopposed in the general election.

Bowers will take the oath of office in January, but he'll fill in on a temporary basis before then.

An amazing story from the Louisville Courier Journal this morning, reported by Andrew Wolfson. Here is just the beginning of the long report:

State court officials have endangered the public and undercut the prosecution of spouse abusers and other offenders by destroying all misdemeanor records 5 years or older, prosecutors and judges in Jefferson County say.

Interim Jefferson Circuit Clerk Michael Losavio said the Administrative Office of the Courts sent "six or seven burly men" to the courthouse Nov. 29 to haul away all microfilm and microfiche records dating from before 2001, all of which have since been destroyed.

Electronic records of old misdemeanor convictions also have been purged from the state court computer system.

State court officials say the records were destroyed based on a statewide document-retention policy amended last year to include electronic records. Previously, only paper court files were destroyed after five years under the policy, which is designed to free up space and save money on storage costs.

Prosecutors and judges said the move will be a boon for criminals.

"This wipes an offender's record clean and cuts us off at the knees," said Chris Foster, an assistant commonwealth's attorney who prosecutes domestic violence cases.

Commonwealth's Attorney Dave Stengel said prosecutors have lost a key tool used in sentencing and bond hearings, as well as in trials, to show that an offender has a pattern of misconduct.

And noting that day-care centers and nursing homes will no longer be able to check job applicants for violent misdemeanor convictions over 5 years old, county attorney Irv Maze said the decision to destroy those records "puts our most vulnerable citizens at risk."

District Judge Jerry Bowles said the move also will prevent enforcement of a federal law that bars people from owning or possessing firearms if they ever had a domestic violence conviction. "The whole purpose was to get guns out of batterers' hands permanently," he said.

Jefferson County Chief District Judge Donald Armstrong Jr. said he "asked and begged the AOC not to do this, but they said they had an order."

Armstrong said the decision to destroy records also hurts "innocent people" who are no longer able to prove that a charged was dismissed or that they were acquitted.

Deputy clerks say two or three people a day come to the courthouse -- some in tears -- after an employer or prospective employer finds out that they were arrested on a charge that was later dropped.

"Now they can't prove that," Armstrong said.

Losavio and Stengel said one supervisor in the clerk's office archives -- Diane Hawkins -- was so intent on saving the records that she threw herself across them; Losavio calls her "Joan of Archives."

More from the story:

Thomas Dibble, a records manager for the Superior Court of New Jersey and a nationally recognized expert on record retention, described the Kentucky AOC's seizure of documents last month as "high-handed" and said the state erred in not involving court users in the decision-making process. * * *

Dibble, who consults for the National Center for State Courts, said he would argue that electronic records should be kept permanently because "computer memory is so cheap" and there is no reason to discard them.

Most court systems in other states also have policies on purging records, but most only set minimum periods for which records must be retained, and allow individual courts to elect to keep them longer.

The Kentucky policy is mandatory. [ILB - What is Indiana's policy?]

The policy does require that case information be retained for dozens of crimes that carry enhanced penalties for subsequent offenses.

But First Assistant Commonwealth's Attorney Harry Rothgerber Jr., said that when his office checked on an offender convicted last year of threatening Judge Bowles, it found the offender's conviction for possession of drug paraphernalia had been erased.

As a result, when charged with the same offense earlier this year, he was labeled as a first offender. A bench warrant is pending for his arrest.

"We have a person out there who could be charged with a felony" if the previous records weren't destroyed, Rothgerber said. "I am livid about this."

Carol Cobb, who heads the commonwealth's attorney's domestic violence division, said the destruction of records will undercut the truth-in-sentencing law, which allows jurors to be told about prior misdemeanor convictions.

"It is very upsetting that they would do this without consulting the people it affects," she said.

Ind. Courts - "Hancock courthouse work reveals historic features"

Greenfield -- A $6 million renovation and historical restoration of the Hancock County Courthouse in Greenfield has taken longer than planned, but officials say they're happy with the result.

"It's going to be a real great asset to the county to have it done," said Armin Apple, a county commissioner.

Workers have uncovered some of the old building's features that had been hidden by previous renovation work. A dropped ceiling, for example, had obscured a large, domed rotundalike ceiling in the Circuit Court.

Ind. Law - Does a variance apply to a structure or the land?

HOBART | Members of the Board of Zoning Appeals are wrestling with a modern-day version of the chicken or egg conundrum.

They must decide if a variance granted to a billboard applies to the billboard itself or the land on which the billboard was erected.

For years, Lamar advertising had a contract for a billboard about 250 feet east of the northeast corner of Utah Street and U.S. 30 and had a variance for that sign. Earlier this year, Lamar decided not to renew its lease, and is asking the Board of Zoning Appeals for permission to move the billboard about 200 feet west, to a location about 50 feet from the northeast corner of Utah Street and U.S. 30. The business received a necessary permit from the state to do so.

At the same time, representatives of Outdoor View advertising have approached the BZA, asking for permission to build a new sign on Lamar's former location. They have not yet received a state permit.

Both signs cannot be approved by the board because state law prohibits billboards within 500 feet of each other, City Planner Sergio Mendoza said.

The board voted Thursday night to table both requests until the January meeting to see if Outdoor View also gets a state permit. The board also has the option of denying both requests.

Ind. Gov't. - Allen County commissioners ban continuous meetings

For the first time in decades, the Allen County commissioners will not be “continuously” meeting, a practice that was criticized by the state’s public access counselor.

John McGauley, spokesman for the commissioners, said the commissioners will not approve a resolution to meet in “continuous session” next year, an action the board has taken for about 20 years. The commissioners next year will also conduct public legislative meetings only every other week, a change from their weekly Wednesday meetings from past years.

The commissioners previously said going into continuous session allows the three-member board to meet without violating open-meeting laws. Although state law allows commissioners to meet without notice for administrative functions, Allen County has passed the resolution to make sure it complies with the laws.

The Indiana public access counselor, however, has twice ruled that state law does not allow county commissioners to meet in continuous session.

In October 1998 and again in March 2000, the state office issued opinions saying the practice is prohibited. In one case, it ruled the meeting in question was legal, even if its defense didn’t hold up, because it dealt only with administrative functions exempt from the Open Door Law. The other meeting the state office declared to be a violation. Even the administrative meetings that don’t require notice “must still be open for the public to attend and observe them,” the opinion said.

Commissioner Nelson Peters said eliminating the continuous session was done to provide more transparency to county government.

The ILB is unclear at the moment of the distinction, if any, between "continuous" meetings and "serial" meetings. The latter have been the subject of a number of ILB entires - a bill to probhibit them has failed in the past two legislative sessions, despite much editorial acclaim.

Ind. Decisions - More on: Supreme Court issues order late this afternoon

The Indiana Supreme Court yesterday set a Jan. 19 execution date for a New Albany man convicted of killing a state trooper.

Norman Timberlake, 59, was convicted in 1995 of murdering Master Trooper Michael Greene during a traffic stop on Interstate 65 north of Indianapolis on Feb. 5, 1993.

Timberlake, in his final appeal of his death sentence, asked the court for a chance to prove that he should not be executed because of insanity.

The U.S. and state constitutions prohibit the execution of a person who is insane at the time the sentence is to be carried out. Before his trial, Timberlake was determined to have been sane when he shot Greene.

The justices rejected the request for a new competency proceeding by a 3-2 vote. The majority opinion, written by Chief Justice Randall Shepard, said Timberlake has not shown a reasonable possibility that he can meet the court's definition of insanity.

The so-called "Ford" standard, established by the U.S. Supreme Court, says that a person is insane if he or she is "unaware of the punishment they are about to suffer and why they are to suffer it." * * *

Justice Robert Rucker joined a dissenting opinion written by Justice Theodore Boehm.

Timberlake is clearly sane under the Ford standard, Boehm wrote.

But he added, "I am not confident that the Ford standard will ultimately prove to be the test for eligibility to be executed consistent with the Eighth Amendment."

Boehm noted that the Ford standard "has never been squarely adopted by the U.S. Supreme Court, and subsequent decisions of that court have cast some doubt on it."

The dissent notes that the U.S. Supreme Court has since prohibited the execution of retarded people because of diminished capacities to understand and process information.

"If a person who is not mentally retarded suffers from the same 'diminished capacities,' it seems equally offensive to the Eighth Amendment to execute that person," Boehm wrote.

"There is sufficient doubt" about Timberlake's mental condition "that I would permit him to proceed" with a Marion County Superior Court proceeding to determine his eligibility for execution, Boehm wrote.

Friday, December 15, 2006

Ind. Decisions - Transfer list for week ending December 15, 2006

Here is the Indiana Supreme Court's transfer list for the week ending December 15, 2006.

Nearly three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

List of Cases Granted Transfer and Awaiting Decision. The ILB has constructed what will be a dynamic table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. Access the list here. To be next updated Sunday 12/17/06.

Ind. Decisions - One Indiana case today from 7th Circuit

The defendant was indicted for
defrauding Indiana Medicaid. The government’s case
centered on three independent methods that Davis used
to get Indiana Medicaid to pay for procedures that they
might not otherwise have paid: he billed for services that
were actually provided by other people (substitute-billing),
he billed for hours of work that nobody performed
(overbilling), and he billed for different procedures in
order to avoid pre-authorization requirements (miscoding).
A jury returned a general verdict of guilty. On appeal,
Davis raises four issues. He challenges two evidentiary
rulings, he challenges whether one of the three charged
methods of fraud—substitute billing—was actually prohibited, and he challenges the indictment as duplicitous.
Because we find no error, we affirm.

Norman Timberlake v. State of Indianais titled "PUBLISHED ORDER CONCERNING SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF IN CAPITAL CASE." It is a 3-2 opinion written by Chief Justice Shepard, with Dickson and Sullivan, JJ., concurring, that begins and concludes:

Having exhausted the judicial review to which he is entitled as a matter of right, Norman Timberlake remains sentenced to death for murdering a law enforcement officer acting in the line of duty, and the State has requested an execution date be set. Timberlake has filed papers requesting permission to litigate a successive post-conviction claim that his mental illness renders him “incompetent to be executed” under the state and federal constitutions. However, a court-appointed psychiatrist has concluded that, although Timberlake has active and chronic paranoid schizophrenia, Timberlake has the mental capacity to understand that he is about to be executed and why. Because we conclude on the record before us that Timberlake has not shown a reasonable possibility that he is “incompetent to be executed” (and thus entitled to relief on his claim), we deny his request for further review of his sentence. A date for execution of the sentence will be set by separate order. * * *

Because Timberlake has not met his burden of establishing a reasonable possibility that he is entitled to post-conviction relief, we decline to authorize the filing of a successive petition. A date for execution of the death sentence will be set by separate order.

Rehearing should not be sought if Timberlake intends merely to raise the same arguments we have already addressed. If he does petition for rehearing, however, he shall certify in the papers presented to the Clerk for filing that copies have been sent by fax or electronic mail to opposing counsel and to the Division of Supreme Court Administration (fax number 317/232-8372).

The dissent is written by Justice Boehm, with Rucker, J. concurring:

The issue before us is whether Norman Timberlake is insane within the meaning of the Eighth Amendment prohibition against execution of an insane person. This requires an assessment of his current mental condition. We are not concerned with his insanity at the time of the offense, which is judged by a different formulation of “insanity.” Nor is the issue his ability to understand the proceedings and participate in the defense at the time of his trial. * * *

We are told that Timberlake believes that a machine is guiding the actions of his jailers and executioners as well as a number of other persons in public life. The machine speaks to him and on occasion tortures him. Dr. Parker concludes that Timberlake is not malingering in these claims. Because Dr. Parker was asked to, and did, opine only as to whether Timberlake met the Ford standard, we have no opinion as to whether Timberlake met any other standard of “insanity.” Surely, most ordinary citizens would consider a genuine belief in this machine and its workings to render Timberlake, like Arthur Baird before him, at least on the margins of insanity. It seems clear from Dr. Parker’s report that Timberlake has ordinary intelligence and the ability to communicate. Whether Timberlake’s belief in this machine leaves him with “diminished capacities” to “understand and process information” or to “engage in logical reasoning” or to “control impulses” seems more debatable.

As I stated in Baird, we should be cautious in carrying out the death penalty because of its irreversibility, whatever we think of its morality. In Baird’s case, it seemed to me that the circumstances of his crime and trial left some question as to whether the death penalty was appropriate, even though it was clear that he met the statutory requirements for eligibility by reason of killing his wife, his mother, and his father. Timberlake engenders no such doubt. He killed a law enforcement officer in the line of duty. Timberlake is nonetheless entitled to the protections of the Constitution of the United States. There is sufficient doubt as to his mental condition that I would permit him to proceed with an adversary proceeding to resolve his eligibility to be executed consistent with the Eighth Amendment.

[Update] Here is a brief story from the Indianapolis Star, headlined "Trooper's killer to be executed in January."

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

We conclude that the trial court’s entry of default judgment was just and that the trial court did not abuse its discretion in refusing to grant Mallard’s Pointe’s motion for relief from judgment. We further determine that L & L Investors is entitled to appellate attorney’s fees for defending the trial court’s sanction. Affirmed and remanded for proceedings consistent with this opinion and to determine the appropriate amount of appellate attorney’s fees to be awarded to L & L Investors.

Law - Unofficial table of elite NY law firm associates' 2006 bonuses and total compensation

Ind. Courts - More on: State's high court to hear Clark battle over fees next week

As noted here last Sunday, Dec. 10th, the Supreme Court heard oral arguments yesterday in Clark County Council v. Donahue. As Ben Zion Hershberg of the Louisville Courier Journalreports today:

The legal dispute began about 2½ years ago, when county government was experiencing a budget shortfall and began appropriating the [fees paid to the courts by offenders who are on probation] to help cover a number of court expenses that until then had been paid from the general fund.

The county's four judges filed suit against the council in early 2005, saying state law required the fees to be used by the courts only to supplement the probation programs they provide.

They argued that the council could appropriate the probation fees only for the purposes established by the judges.

In ordering mediation in the case, which was unsuccessful, the Supreme Court highlighted the potential impact of the litigation. It said that any decision it issued in the case "could well constrict the ability of counties and courts to work through similar budget disagreements" statewide.

Thursday, December 14, 2006

TALLAHASSEE, Fla. - "Snowbirds" and other part-time Florida residents who insure their cars back home cannot make claims under Florida laws that may be more favorable to them than those in their own states, the state Supreme Court said Thursday.

The ruling applies to crashes or other damages that occur in Florida. It was unanimous, but Chief Justice R. Fred Lewis agreed only with its result. He wrote that the majority's sole reliance on where a policy is issued may result in unintended consequences.

The opinion quashed a 2nd District Court of Appeal decision to permit a lawsuit under Florida law against State Farm for a claim on an Indiana policy.

The Supreme Court said only Florida citizens, not visitors or part-time residents, can claim the benefits of Florida law under out-of-state insurance policies and only then if necessary to "promote a paramount public policy."

"Although Florida welcomes its many visitors, whether for short or extended stays, we cannot rewrite their out-of-state contracts," Justice Raoul Cantero wrote for the high court.

The decision will prevent Lake Wales residents Thomas and Margaret Roach, who were injured in 2001 while riding in a neighboring couple's Indiana-insured car, from suing State Farm for underinsured motorist compensation under Florida law.

Indiana law would prohibit them from recovering because it permits an offset of underinsured motorist coverage against claims paid under other types of coverage. Florida law does not permit offsets.

The Roaches previously accepted personal injury liability settlements from a second motorist involved in the crash and State Farm, which covered the car owned by the Indiana couple, Ivan and Betty Hodges. Mrs. Hodges was killed in the crash.

The Hodges were snowbirds who spend winters at their second home in Lake Wales, but that didn't make them Florida citizens, the high court found.

In a separate concurring opinion, Lewis wrote that he would consider the location of the risk being insured and the intentions of the parties to an insurance contract as well as where it is issued to determine if Florida law should apply.

Lewis was worried that using the majority's more rigid doctrine will result in other states' laws controlling automobile insurance contracts designed and intended to cover risks in Florida and to be governed by Florida's laws.

This case requires us to decide which state’s law applies when an automobile insurance contract is executed in another state, where the insureds permanently reside, but the insureds spend a substantial amount of time in Florida and the accident occurs here. In Roach v. State Farm Mutual Automobile Insurance Co., 892 So. 2d 1107, 1112 (Fla. 2d DCA 2004), the district court of appeal held that Florida’s public policy prohibited application of the lex loci contractus rule, which would apply the law of the state where the contract was executed. Instead, the court invalidated an exclusion contained in the policy that, although permitted in the state where the policy was executed, is not permissible under Florida law. The court then certified a question of great public importance.1 We accepted jurisdiction. See art. V, § 3(b)(4), Fla. Const. To clarify the issue presented, we rephrase the question as follows:

WHERE RESIDENTS OF ANOTHER STATE WHO RESIDE IN FLORIDA FOR SEVERAL MONTHS OF THE YEAR EXECUTE AN INSURANCE CONTRACT IN THAT STATE, MAY THEY INVOKE FLORIDA’S PUBLIC POLICY EXCEPTION TO THE RULE OF LEX LOCI CONTRACTUS TO INVALIDATE AN EXCLUSIONARY CLAUSE IN THE POLICY?

As explained below, we answer the question “no” because the public policy exception to the lex loci rule may only be invoked to protect permanent Florida residents. We quash the district court’s decision, which unduly expanded the exception to protect temporary residents.

Updating the ILBentry from Dec. 7th, a reader has sent the ILB a link to the Bloomfield Free Press (Serving Bloomfield and Eastern Greene County), which does not directly link to stories, but if you scroll down you will see one headlined "'SHOW ME THE MONEY?' Courthouse financial figures hard to get" that begins:

BLOOMFIELD - Although Greene County Commissioners are asking for an additional $4 million for the new courthouse addition, no one involved can seem to find totals of exactly how much money they have already spent.

An open records request was filed with the Greene County Auditor’s office last week by the Bloomfield Free Press seeking:

• A complete and comprehensive accounting of all monies spent on the new construction at the Greene County Courthouse, including, but not limited to:
• All payments to contractors, suppliers and workers
• All payments made to attorneys, bonding agents and consultants
• Complete and up-to-date balances in all accounts associated with aforementioned construction
• Complete and up-to-date balances in all accounts associated with aforementioned construction, including, but not limited to:
• All accounts with any and all bonding agencies
• Any and all county accounts associated with said construction.

The request was answered by the commission’s attorney Marilyn Hartman, who said Free Press representatives were welcome to comb through records at the auditor’s office - an entire file cabinet full - covering literally years’ worth of records.

But, Hartman said, she was unaware of anyone locally having actual totals for exactly how much money has been spent to date on the project.

She noted that an investment company in New York sends the county quarterly statements of their account, but, “I’m not an accountant and can’t read the thing.”

Greene County Auditor David Bailey said that his office was not in charge of keeping a running total of expenditures. His office has nothing to do with payments made to contractors for the project, he said. “I’m not in that loop,” Bailey said.

The chairman of the group which actual owns the new addition - the Greene County Building Corporation - also had no idea where the county stood financially. “The county commissioners are the keepers of the purse strings,” said Amos Mussleman. “We are just the figureheads.”

Wednesday, December 13, 2006

Ind. Courts - Carroll Circuit Judge Donald Currie featured

Carroll Circuit Judge Donald Currie is featured in a long article by Debbie Lowe in the Carroll County Comet. It begins:

A little over a year ago, Delphi attorney Donald Currie was appointed by Gov. Mitch Daniels as Carroll Circuit Court Judge due to the early retirement of Judge Joseph Carey in 2005. Currie enjoyed the duties of the appointment so much he ran for the seat in the November general election. Running unopposed, he won by a landslide.

Currie has been in the community since 1995. Married with two children, he is a lieutenant colonel staff Judge Advocate in the National Guard, was formerly a Delphi City Council member and private attorney.

In a recent Comet interview, Currie discussed his one-year experience and what his plans are for the future now that he is established in the circuit court.

“I enjoy making decisions,” Currie said, describing what he appreciates about his judicial duties. “I like the finality and I enjoy helping people reach closure.”

The 48-year-old Currie said he has wanted to be a judge since he was at the Indiana University School of Law in Indianapolis. He was exposed to the judiciary when he was later employed as the director of the Indiana Judicial Study Commission.

Currie said he relishes being a judge in Carroll County because he is able to proceed with several and various types of cases at a quicker rate due to the absence of a backlog, which is a prevalent situation in many larger counties.

“I like to see cases resolved rather than letting them continue for long periods of time,” he continued. “There’s an old saying, ‘justice delayed is justice denied’ and I remember that as I set cases.”

Environment - Another Mallard Lake decision

A ruling by Michael D. Keele, a judge in Marion Superior Court Environmental Division, has returned a landfill permit to J.M. Corp.

This week, Keele agreed that environmental law Judge Mary Davidsen acted appropriately when she allowed J.M. Corp. to continue the permit process for the proposed Mallard Lake Landfill. The Indiana Department of Environmental Management (IDEM) claimed that Davidsen acted “arbitrarily and capriciously.”

“My attorney told me (Keele) ruled against the state. That means we have our permit back,” said Ralph Reed, founder of J.M. Corp. “He basically ruled that the other administrative judge’s decision was right.”

Counsel for J.M. Corp. and IDEM testified before Keele on Oct. 17 on the matter. Parties were given 30 days to submit findings of fact and Keele was expected to rule 30 days later.

“I have not been asked to decide whether a landfill is appropriate, only to determine whether the environmental law judge erred in the permit process,” Keele said during the hearing. “I have all the information I need to make a decision. The ball, you might say, is in my court.”

In 1978, J.M. Corp announced plans to create a landfill in northern Madison County. A year later, the company purchased a 154-acre farm at the corner of County Road 300 East and County Road 300 North in Richland Township.

But the project has been mired in controversy and legal opposition for parts of four decades. J.M. Corp. has encountered opposition form an activist group formed in 1979 called the Killbuck Concerned Citizens Association.

See the complete story in Thursday’s The Herald Bulletin.

The ILB appears to have lost track of this case somewhere along the line. It has a copy of the Oct. 20, 2004 Final Order in the Mallard Lake Landfill permit dispute by Judge Catherine Gibbs, but nothing more recent. Here are links from four earlier ILB entries.

[Clarification] I'm told Judge Mary Davidsen presided over the case when she was the only judge at the Office of Environmental Adjudication, then transferred the case to Judge Gibbs after she joined the agency. So the Final Order linked to above is the one referenced in yesterday's story.

Marcia, I could take your post and have a lot of fun running with it if I had the time. You were taunting me to run with it, were’nt you? Anyway, I’m slammed with work and unable to take the bait. Give me a little notice next time and we’ll have some fun. That baloney about divorce work being what one does when all else fails is such an insult not only to divorce lawyeres but to the public who needs and wants competent representation. Diana

Ind. Decisions - Supreme Court decides one today

A gas station clerk reported to police the make and license plate number of a vehicle she said had driven off without paying for gasoline. After charges against the owner of this vehicle were dismissed, the owner sued the clerk for false arrest, false imprisonment, defamation, and abuse of process. A qualified privilege available for communications to law enforcement offi-cers protects the clerk in these circumstances. * * *

In this case, the Court of Appeals took the position that there was a genuine issue of ma-terial fact as to whether or not the statements Kuhn made to the police were made without belief or grounds for belief in their truth. This is also the position taken by the dissent here. Specifi-cally, they say that there are at least two factual possibilities that preclude summary judgment: first, that “Kuhn intentionally and falsely reported Holcomb as the culprit,” or second, that Kuhn made her report “with reckless disregard of the truth.” * * *

We affirm the judgment of the trial court with respect to its decision to grant summary judgment in favor of Kuhn and Dimmick. We summarily affirm the decision of the Court of Appeals on the issue referred to in footnote 2 [ILB- re a videotape without proper foundation].

The Hon. Randall T. Shepard was re-appointed to a new five-year term as Chief Justice of Indiana following a unanimous vote of the Indiana Judicial Nominating Commission on Wednesday.

Chief Justice Shepard’s term will begin on March 4, 2007.

“I am honored that the Commission has extended my time as Chief Justice of Indiana. I am very proud of what our Court has accomplished and I look forward to continuing to serve the people of Indiana,” the Chief Justice said.

Chief Justice Shepard, of Evansville, was appointed to the Indiana Supreme Court in 1985 by then Gov. Robert D. Orr. He was named Chief Justice in 1987 and was later selected for renewed terms.

The seven-member Commission includes three lawyers elected by Indiana’s attorneys and three citizen members appointed by the Governor. It is chaired by the Chief Justice.

On Wednesday, the Commission heard the four associate Justices, the Hon. Brent Dickson, the Hon. Frank Sullivan, the Hon. Theodore “Ted” Boehm, and the Hon. Robert Rucker, discuss the Court’s work.

Chief Justice Shepard was the only candidate for Chief Justice. During his 25- minute public interview, attorney James O. McDonald of Terre Haute chaired the meeting.

In his remarks, the Chief Justice outlined the Court’s accomplishments, including the regard in which it is held by other appellate courts, its work on reducing language barriers in the courts, its efforts at educating the public about the judiciary’s role in society and its important role as “the board of directors” for the Indiana judiciary.

After a brief meeting in executive session, Chief Justice Shepard was asked to rejoin the Commission members, which then voted in public in favor of his re-appointment.

POSNER, Circuit Judge. Under the federal sentencing
regime created by the Booker decision, the sentencing
judge is first to compute and consider the guidelines
range for the defendant’s offense and then to select and
impose a sentence—which can be inside or outside that
range (provided of course that it is within the statutory
sentencing range)—guided by the sentencing factors in 18
U.S.C. § 3553(a). If the judge follows this procedure and
commits no legal or clear factual errors and discusses
the applicability of any substantial statutory sentencing factors drawn to his attention by either party, we must
uphold his sentence unless it is unreasonable. Since the
statutory sentencing factors are multiple and vague, it
will be the rare case in which it is possible to say that the
judge who has complied with the procedural requirements
set forth above imposed an unreasonable sentence. * * *

Johnson’s
crimes would have justified on grounds of both
retribution and deterrence an even longer sentence than
he received. The statutory maximum of 108 months
(9 years) would have been reasonable. The judge displayed
lenity, not the reverse as Johnson argues.
AFFIRMED.

Also of interest today from the 7th Circuit is an appeal from the ND Ill.in the case of IN RE: AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION. The 17-page opinion is written by Judge Posner, Judges Easterbrook and Manion are also on the panel. A quote from p. 4:

The defendants are companies or the successors to
companies that provided services, such as transportation,
finance, and insurance, to slaveowners. At least two of
the defendants were slaveowners; the predecessor of one
of the bank defendants once accepted 13,000 slaves as
collateral on loans and ended up owning 1,250 of them
when the borrowers defaulted, and the predecessor of
another defendant ended up owning 346 slaves, also as a
consequence of a borrower’s default. Even before the
Thirteenth Amendment, slavery was illegal in the northern
states, and the complaint charges that the defendants
were violating the laws of those states in transacting
with slaveowners. It also claims that there were occasional
enslavements long after the passage of the Thirteenth
Amendment and that some of the defendants
were complicit in those too. By way of relief, the complaint
seeks disgorgement to the class members of the
profits that the defendants obtained from their dealings
with slaveowners.

Also today, US v. Hook, dealing with (and affirming) the constitutionality of the federal DNA collection act.

A controversial water company deal that prompted a federal investigation and left Lawrence residents paying some of the highest rates in the metro area appeared to be nearing an end Tuesday.

As the FBI closed its investigation without charges, Lawrence and Citizens Gas & Coke Utility officials announced they want to form a public charitable trust that would own and operate Lawrence's water and sewer utilities.

The proposed agreement with Citizens Gas would lead to a reduction in the combined water and sewer rates that nearly 15,000 residential and commercial customers pay by an average of 20 percent, saving ratepayers $3 million a year.

The plan emerged from months of court-ordered mediation and would end a lawsuit brought by Lawrence officials and ratepayers to regain control over the waterworks from a private company, Lawrence Utilities LLC.

City officials approached Citizens Gas officials this summer about buying the utilities should the city regain control of them. Under the agreement, Citizens Gas would form a nonprofit trust called Citizens Water of Lawrence to assume ownership of the utilities.

The nonprofit trust would restore Indiana Utility Regulatory Commission control over water rates, which would be set on a break-even basis.

Lawrence would get about $40 million in cash for the utilities' land, buildings and equipment. By placing the assets in an irrevocable trust, the waterworks would be removed from political control or the possibility of a private sale.

Then-Mayor Thomas D. Schneider, a Republican, handed control of the utilities to three of his political supporters in mid-2001 without taking bids. Company records show the men invested $1,000, and Schneider provided a $4.84 million infusion of cash, vehicles and assets to help launch their startup company.

Customers have criticized Schneider's pact, which could extend for 50 years, because it included three hefty water rate increases in less than two years, doubling Lawrence's rates.

The deal contributed to Schneider's defeat after 16 years as mayor.

A sidebar notes:

The city and ratepayers sued the water company to break the contract. In November 2005, they won a favorable ruling from a Marion Superior Court judge, who found the contract had violated a state bidding law. The agreement to be announced this week would end an appeal of this decision and a pending lawsuit in Marion County and transfer the Lawrence waterworks to a public charitable trust operated by the board that controls Citizens Gas & Coke Utility.

Fife received nearly four years in prison for admitting he and his wife, Karen Krahn, formed five fake companies that received consulting fees for work that Fife already was being paid to perform as one of former Mayor Robert Pastrick's closest political advisers.

"In short, the corporations were merely shells used to conceal large fees Fife was reaping from his dealings with the city," U.S. Circuit Judge Michael Kanne wrote. "He used the position (city officials) placed him in to funnel public funds to himself and his shell corporations for personal use."

Fife and Krahn did not pay taxes on $892,509 that the city paid their shell corporations between 1998 and 2001, resulting in a loss of more than $380,000 in unpaid taxes.

CROWN POINT | The state appeals court's reversal of a concrete-plant case was too little too late for developer Tim Heidbreder.

The developer already sold the land the controversial Redi-Mix plant was supposed to be built on.

"Holy mackerel," Heidbreder said of an Indiana appeals court decision issued Tuesday in his favor. "We won every one of those things. But, it's too late. We already sold half of (the land) off. I had no choice, I couldn't sit on it."

The state appeals court states that the Lake Superior Court erred when it found that the general zoning statute governing counties did not apply to municipalities like Crown Point. The appeals court also found special use had been granted to Heidbreder and that Mayor Dan Klein did not have the power to veto the City Council's approval of the permit.

Plans for the concrete plant fell through last year when Klein vetoed a resolution approved by the City Council. The resolution would have allowed petitioner Prairie Material special-use zoning to build the concrete plant on Millennium Drive, south of the Brookside subdivision. Nearby residents vehemently opposed the development.

The City Council failed to secure a two-thirds majority to override Klein's veto.

Heidbreder's application for a building permit to begin construction on the plant was denied by the city in June 2005. His petition to overturn the denial failed in Crown Point's Board of Zoning Appeals.

Environment - Dredging Grand Cal; EPA Libraries

Dredging Grand Cal . "HAMMOND | Separate streams of governmental attention are finally coming together to clean the Grand Calumet River." That quote is from a story in the NWI Times a year ago. At the time I wrote: "Not to be unduly cynical, but I recall the same discussions of Grand Cal remediation alternatives and sediments when I was at IDEM in 1986." Today's Times includes this story, headlined "Hammond river cleanup could start next year", that begins:

HAMMOND | Cleanup of a long swath of the Grand Calumet River through the heart of the city should begin next spring.

A joint federal, state and local project aims to remove more than 130,000 cubic yards of sediment -- considered among the most polluted in the Great Lakes -- and return the waterway between Columbia and Hohman avenues to a more natural ecosystem.

Dredging about 4 feet of contaminated river bottom and replacing it with clean soil will reduce the ecological and human risk by 99 percent, said James Smith, project manager with the Indiana Department of Environmental Management's land quality office.

The river was last dredged in 1895, and a century of industrial abuse has left the river bottom a cesspool of the most poisonous compounds known -- polychlorinated biphenyls, pesticides, phenols, mercury and other cancer-causing or toxic chemicals.

EPA libraries. The ILB has had several entries labeling "EPA trashing its library collection." In this story from GovExec.com, the EPA attempts to defend its actions.

Tuesday, December 12, 2006

Ind. Law - The Indiana Register and the Indiana Code: What can be done?

Over the past few months, the ILB has posted a number of entries about the changes that the LSA has made to the Indiana Register, and about the Indiana General Assembly's poor custodianship of the Indiana laws, actions to the detriment of the citizens of Indiana who are governed by these rules and laws.

The ILB has received feedback indicating that a number individuals, groups, and professions share these concerns. Within the next week or so, I intend to post an entry discussing what might be done in the upcoming General Assembly to correct what has become an increasingly difficult situation.

I'd like to hear from you. Perhaps you are a small town librarian who can no longer make the Indiana rules and statutes readily available to your users. Or maybe you are a judge in a small county that used to have the Acts of Indiana, the Indiana Code, the Indiana Administrative Code, and the Indiana Register in the county courthouse library, but now you find that not only are these volumes not printed anymore, but accessing them online is problematic at best. Maybe you are in charge of compliance in a small (or large) business and can't keep track of what is happening anymore. Or a citizen wanting to have advance warning of rules that may be under consideration.

Let me hear from you. I may publish some of your comments, so let me know if you would prefer I not use your name. Send you comment here.

For background, here is an ILB posting from July 13th, reproduced in full:

My Res Gestae column for the July-August issue examines the Indiana General Assembly’s recent move to eliminate the Indiana Register, and assesses the General Assembly’s custodianship of the Indiana statutes. Here are a few sample quotes from the article:

Just two issues short of completing its 29th volume, representing 29 consecutive years of publication, the familiar Indiana Register has been eliminated, in a move that will come as a surprise to most of Indiana’s legal community and others reliant on the Indiana Register for information about Indiana’s administrative rules. * * *

LSA’s actual changes, however, go far beyond what was announced, and far beyond the statutory authorization. The Indiana Register, a serial publication, has been replaced by a webpage containing links, not to the various pages of the Register, but to the individual rulemaking documents submitted by the various state agencies to LSA. * * *

This move by the LSA may be an enormous step backward for the State of Indiana and its citizens. A concerned law librarian has furnished me with the result of her recent survey of the status of administrative register publishing for the 50 states and the District of Columbia. [As of the survey, only two states had no register-type publication, North Dakota and Nebraska -- they have now been joined by Indiana.] * * *

[T]he new LSA webpage, a page that contains only links to other URLs, does not meet the universal definition of a “serial publication.” Why is this important? Because the LSA’s posting of the documents individually online, rather than in “a serial publication with the name Indiana Register,” as required by law, may be deemed noncompliant rulemakings, leading to unenforceable rules. A review of the relevant statutes demonstrates how this result could be reached. * * *

The LSA has announced plans to make the online versions of the Indiana Register, Indiana Administrative Code, and the Indiana Code, the "official versions" of the Indiana rules and statutes. Given the current state of the LSA's online efforts with the Indiana Code, that news is cause for concern. Here are some of the issues. [Some of the issues addressed include: the significance of headnotes and history lines; errors in the online Indiana Code; the fact that for much of the year the online version is not current; retention issues.]

Ind. Courts - Judge Sullivan retiring from Court of Appeals

The Indiana Lawyer is reporting:

After four decades on the bench, Court of Appeals Judge Patrick D. Sullivan is retiring as the longest-serving judge in the state.

Judge Sullivan plans to retire in August, leaving the appellate position he was first appointed to in 1969. His current term would have expired in 2012, but his retirement will come nine days short of his 75th birthday -- the legal requirement for Indiana judges to step down.

Judge Sullivan is the only member of the Court who originally was elected to office; his tenure precedes the 1970 judicial amendment which made Court of Appeals judges and Supreme Court justices apointed positions.

Ind. Courts - Retiring Gibson Circuit Judge Walter Palmer honored

The Princeton Daily Clarion has a long report today by Andrea Howe, editor (that is Part 1 of 2), on retiring Gibson Circuit Judge Walter Palmer. The story begins:

There are names that members of the legal community don't forget- names of people who stand out for serving well and long, says Indiana Supreme Court Chief Justice Randall Shepard.

“I say, on that list, belongs Walter Palmer.”

In a room full of lawyers, he got no argument on that point Monday afternoon as he thanked Gibson Circuit Judge Walter Palmer for 30 years of service on the bench.

Thirty years is a long time, Shepard acknowledged. “There could be such a temptation to sit down and say, ‘I've heard this before.'

“It's a terrible disease for a judge,” he told a courtroom full of well-wishers at Palmer's retirement reception. But Palmer, said Shepard, remained immune from the disease of complacency.

“Judges are just people, like the rest of us, who are given an important assignment,” said Shepard.

“For more than a generation, the people who came through those doors into this courtroom have received a fair hearing by an impartial judge, without favoritism.”

The Chief Justice was a surprise guest at the reception organized by the Gibson County Bar Association. But in classic form, Palmer didn't act surprised at all, said emcee Earl Penrod, Gibson Superior Court Judge.

Shepard also notes "Palmer's distinction of hearing the longest civil case in Indiana history. The case, involving power plant utility construction, was among the longest, most complicated big-stakes civil cases on record."

The story today continues with many memories and praise for the judge from his peers - well worth reading.

Ind. Decisions - 7th Circuit decides one Indiana case

James Fife pled guilty to four
counts of willfully making and subscribing a false income
tax return in violation of 26 U.S.C. § 7206(1). Karen
Krahn, Fife’s wife, pled guilty to one count of willfully
aiding and assisting in the preparation and presentation
of a false income tax return in violation of 26 U.S.C.
§ 7206(2). In calculating Fife’s advisory Sentencing
Guidelines range, the district court imposed a two-point
increase in offense level for abuse of a position of trust
pursuant to U.S.S.G. § 3B1.3, and a two-point increase
for the use of sophisticated means pursuant to U.S.S.G.
§ 2T1.1(b)(2). For Krahn, the district court also imposed the two-point increase for the use of sophisticated means
pursuant to U.S.S.G. § 2T1.1(b)(2). Fife and Krahn were
sentenced to forty-six and twenty-four months respectively;
they now appeal the imposition of their sentences.
Finding no error in the district court’s sentencing determination,
we affirm.

Of interest is discussion of the defendant's background, which begins:

Fife, a lawyer, served as the special assistant to the
mayor of East Chicago, Indiana from the mid-1990’s until
2003. In this capacity, Fife was responsible for consulting
on matters pertaining to finance, budget, taxation,
personnel, and legislation, lobbying the Indiana General
Assembly, representing the city on matters involving
riverboat gambling, and acting as a liaison between the
city and other federal, state and local government agencies.
Fife had no immediate supervisor, and was afforded
broad discretion in performing his duties for the city. The
city provided Fife with a handsome salary, health benefits,
a city credit card, office supplies and equipment, secretarial
staff, telephone, transportation, and agreed to
indemnify and defend Fife in any action arising from or
in connection to his services for the city.

NOTICE OF PUBLIC MEETING AND PUBLIC NOTICE OF CANDIDATE FOR APPOINTMENT TO CHIEF JUSTICE OF INDIANA

The Indiana Judicial Nominating Commission issues this Public Notice pursuant to IC 5-14-1.5-5, IC 33-27-3-2, and IC 33-27-3-6. Chief Justice Randall T. Shepard has filed for re-appointment as Chief Justice of Indiana and has consented to public disclosure of pertinent candidate information within the parameters of IC 33-27-3-2(b), (d), and (g). On Wednesday, December 13, 2006, the Nominating Commission will convene at approximately 10:30 a.m. in Room 319, State House, Indianapolis, Indiana, in an open meeting, for the purpose of interviewing Chief Justice Randall T. Shepard.

The candidate's application and any attributable communications concerning the candidate will be available for public inspection and copying pursuant to IC 33-27-3-2(d) and IC 33-27-3-6(e).

An agenda will be posted at Room 319, State House, Indianapolis, Indiana pursuant to IC 5-14-1.5-4. [emphasis added]

How is the Chief Justice selected? Article 7, section 3 provides in part: “The
Chief Justice of the State shall be selected by the judicial nominating commission
from the members of the Supreme Court and he shall retain that office for a
period of five years, subject to reappointment in the same manner, except that a
member of the Court may resign the office of Chief Justice without resigning
from the Court.”

Justice Shepard initially was named Chief Justice in March of 1987, which means
that he has been reappointed in 1992, 1997, and 2002. His current term ends in
2007.

Who is on the judicial nominating commission? This Court webpage, which indicates it was last modified 6/13/06, lists the members, but does not distinguish between attorney members, elected by the bar, and citizen members, appointed by the Governor. From p. 5 of my paper, "Analysis of another effort to alter the Indiana judicial selection and retention process":

The three attorney members on the current Commission were elected for three years rather than six, and their terms do not expire at the same time. Rather, the term of James O. McDonald, Terre Haute (First District), ends December 31, 2006; the term of James H. Young, Indianapolis (Second District), ends December 31, 2007; and the term of Sherrill Wm. Colvin, Fort Wayne (Third District), ends December 31, 2008.

The citizen members of the Commission, appointed by the Governor, also now have three-year terms rather than six-year terms. The term of Derrel E. Zellers, Tell City (First District), ends December 31, 2007; and the term of Payton Wells, Indianapolis (Second District), ends December 31, 2006.

The citizen commissioner slot for the Third District has been vacant since March 2005 when the serving commissioner resigned. That three-year term for the Third District expired December 31, 2005. The opening is now in a new cycle that runs through December 31, 2008. Although IC 33-2.1-4-1(e)17 requires that “vacancies in the office of non-attorney commissioners shall be filled by the governor within sixty days after he has notice of such vacancy,” the Third District spot has been unfilled now for approximately one year.

As far as the ILB knows, the Governor still has not filled the vacant 3rd District citizen posiition, vacant now since March 2005.

Courts - "Where Have You Gone, Sherman Minton?"

Available online at SSRN: Justin Crowe and Christopher Karpowitz have a paper titled "Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice" (abstract with link for download).

The ILB took a look at the paper, given that Justice Minton was a Hoosier (New Albany) and a 7th Circuit judge from 1941-49 in addition to serving as a Supreme Court justice from 1949-56. Wikipedia bio is here.

From the 50-page paper:

What is distinctive about the modern Court is that it has lost its least visible members: the short-term justices. In other words, the modern Court is different not because the justices are setting new records in longevity, but because it does not include any short-termers like Benjamin Curtis or Sherman Minton, the kinds of justices whose relative brief service has long been a staple on the Court. Whether the disappearance of justices in this mold is a problem that needs to be solved remains an open question, but it raises quite different issues than those assumed by advocates of reform. [p. 5]

Even into the twentieth century, however, illness and untimely death continued to result in vacancies and more frequent than anticipated turnover. Sherman Minton, who came onto the Court in 1949, served barely more than seven years before the combination of a heart attack, pernicious anemia, and a crippling spinal ailment caused him to feel that he was “slipping fast.” Combined with his boredom on the Court and worries about mental inadequacy, these physical conditions led the staunch Democrat to step down at the moment he was eligible for full retirement benefits, despite the fact that it meant leaving a vacancy to be filled by Republican Dwight Eisenhower. [p. 15]

St. Clair County, Ill.'s chief judge has temporarily stepped down pending the outcome of charges against another judge who allegedly was driving drunk when the two were involved in a wreck that injured another motorist.

Chief Judge Jan Fiss was a passenger Dec. 3 in newly elected Circuit Judge Patrick Young's sport utility vehicle when it collided with a pickup truck as the judges were returning home from a St. Louis Rams game, police said.

Young, 58, was charged with driving under the influence after refusing a sobriety test. Fiss, who police say was seen dumping out an open beer and trying to hide a beer can after the wreck, was not charged.

On Friday, Fiss, 64, said in a written statement that he would step down temporarily as chief judge "so that the matter concerning the tickets issued on Dec. 3, 2006, is resolved without my participation."

Fiss did not return a message seeking additional comment, left Monday at his office.

St. Clair County judges will vote Wednesday on an interim chief judge, who then will appoint a special prosecutor in Young's DUI case. St. Clair County State's Attorney Robert Haida filed a request for the outside prosecutor Monday, calling it necessary because he has a murder case pending before both Fiss and Young.

"We have to do everything we can to protect the integrity of all of the cases involved," Haida told The Associated Press.

The report repeats what may have been the most notable part of yesterday's story: "Young's attorney, Clyde Kuehn, has said his client was "absolutely within his rights" to refuse field-sobriety and Breathalyzer tests, saying such mechanical tests have proven unreliable."

Ind. Courts - Indiana's court system loses a case to a TV judge in Chicago

The Columbus Republic reports today, in a story by Kelsey VanArsdall, that:

A nationally syndicated reality court show took interest in a local civil case and sent three Columbus residents to Chicago for the experience of a lifetime.

A week after East Columbus resident Cyndi Brown filed in small-claims court to sue a man she'd hired to repair her car, she received a typed letter in the mail that changed her perspective of the case.

The black-and-white letterhead, "Judge Mathis," beamed from the page.

The letter explained that the producers of the courtroom reality television show had found Brown's court file and wanted to feature it.

"I thought my sister was playing a joke on me," said Brown, with a laugh.

"Turns out they go through all the small-claims filed and if they see something they contact you."
* * *

The proceedings changed her conception of reality court shows.

"They ask you your story before (taping the show) and during taping, they don't want you to lie or embellish the truth in any way," said Brown.

"And the judge knows if you are.

"He doesn't mess around."

Brown came away the winner, receiving the money back she paid for parts, labor and the Kelley Blue Book value of the car. Judge Mathis required her to give Smock the car.

Phone calls placed to Smock's residence were not returned.

However, the courtroom experience marked only a part of the mother and son experience.

"I'd never been to a big city before with all the taxis driving everywhere and people going 15 different ways," said Brown.

"Chicago is a really busy city," said Burton.

"This is an experience I'll never forget."

Brown said she has been watching the show, which airs at 9 a.m. weekdays on WNDY Channel 23, since her experience.

Representatives from Judge Mathis could not confirm when the show would air and would not provide further comments to The Republic.

Ind. Decisions - 7th Circuit issues one Indiana decision today

Faraji Omar Garth (“Garth”) was
convicted of robbery and of being an accomplice to attempted
murder. The State alleged that Garth and his
brother, Ahman Garth (“Ahman”), along with two others,
robbed a convenience store and attempted to kill the clerk.
After his conviction was affirmed on direct appeal, Garth
filed a petition for relief in federal court under 28 U.S.C.
§ 2254 claiming that the jury instruction given at the
state trial, regarding attempted murder, violated due
process. The district court granted Garth’s petition. We
believe that § 2254 relief was improvidently granted, and
therefore, reverse.

An Illinois judge driving with his boss was charged with drunken driving after a wreck that sent another motorist to the hospital, and the other judge was seen by an officer pouring out a can of beer, police said.

St. Clair County Circuit Judge Patrick Young, 58, was handcuffed and arrested and charged with drunken driving after the Sunday crash, about 20 miles from St. Louis. He refused a sobriety test, authorities said.

Another officer, Jeffrey Sheary, reported seeing Young's passenger, Chief Judge Jan Fiss, 64, pour out an open beer can on the road and try to hide it in his coat.

It was not immediately clear Thursday if Fiss had been charged.

In his report, Belleville, Ill., police Patrolman Shane Brown said Young was apparently turning left in his sport utility vehicle when he entered the path of a pickup truck. Its driver, Abel Muhammad, 39, was trapped in the wreckage and later hospitalized complaining of a broken leg.

Brown reported detecting "a strong odor of an alcoholic beverage" on Young's breath. He wrote Young "also had glassy, red bloodshot eyes."

Young's attorney, Clyde Kuehn, said Thursday his client was "absolutely within his rights" to refuse a field sobriety test and a Breathalyzer test, saying the tests have proven unreliable.

Refusing a blood alcohol test leads to a six-month license suspension in Illinois. The misdemeanor DUI count carries a maximum punishment of a year in jail and $1,000 in fines, Kuehn said.

For background, start with this ILB entry from Nov. 2, quoting from the LCJ: "A Supreme Court decision in the case is likely to have statewide impact on the way county councils and judges interact with one another in managing such fees, which are collected from those put on probation to help pay for the services they receive."

Ben Ross said he plans to take his case all the way to the Indiana Supreme Court now that a state appellate court has upheld an order forcing him to tear down a 55-foot tower he built next to his beach-front home.

“I got a permit from the city. I built the tower, and now the neighbors don't like it so I'm going to have to tear it down?” Ross asked this week, standing near the foot of the tower, at 909 Colfax Ave., with his two dogs. “I had a dream 30 years ago to build a tower out of a grain silo and put a room on top. That dream has evolved.

“I dug through all the code books before I did this and I did everything right.”

But a senior appellate judge earlier this month ruled in favor of a previous ruling by LaPorte Superior Court 2 Judge Steven King that when Michigan City issued a building permit for the tower, it violated its own zoning ordinance.

King, who ordered the 25-foot portion of the tower that stood above the city mandated 30-foot height restriction on residential buildings be torn down, did so in response to a 65-plaintiff lawsuit filed against Ross, his wife and Michigan City.

In their appeal, Ross and his wife, Debbie - whose family has owned the Colfax Avenue lot on which the home sits for decades - claimed the court erred in not dismissing the original complaint against them, and in finding the permit violated city zoning codes.

Jack Harris, a neighbor whose hilltop home can be seen from Ross's front yard, was the lead plaintiff in the suit, which was initially filed because neighbors felt Ross's tower was too high and dangerous, and would lower the property values of their homes.

Harris claims the Rosses' addition is not a tower, but simply an additional room on the house, which violates the 30-foot height limit.

Ross said his tower was built with two of those concerns in mind.

“It's well-built,” he said. “We made sure it could withstand close to 200-mph winds.”

Bill Facciaponti, who lives next to Ross, said Friday he felt the decision of the appellate court would stand, even if Ross decides to take his appeal to the Indiana Supreme Court.

Facciaponti said he's not afraid of accusations that his home violates city building codes.

Ross claims that Facciaponti's home - and many others in the area owned by plaintiffs in the suit - violate city code, as well, since many rise above the 30-foot restriction.

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending December 8, 2006.

Ind. Gov't. - An observation on a PROBE Report recommendation

Taking Down Words posted a copy of the Governor's PROBE report last week, access it here. What caught my eye was on p. 23 of the report (p. 26 if you go by the PDF numbering) - in the next to the last sentence on the page:

Consideration should also be given to allowing private trade organizations to certify and accredit professions and occupations.

Interesting idea. Here is what the Indiana Supreme Court remarked in 1941 about a similar plan:

[The Indiana Constitution] has vested all of the governmental power, which was not reserved in the sovereign people, to a government consisting of three departments, and it has left no discretion in the Legislature to distribute governmental power outside of those three departments.

It is true that the Legislature may create new offices within the departments, and provide for the selection of officers to operate those offices, but it is unthinkable that the Legislature may have discretion to vest a part of the sovereign power in some agency outside the government, as set up and established by the Constitution.

The appointment to office is universally held to be an exercise of the sovereign power. The State Dental Association is a private nongovernmental agency. It was chartered, it is true, by the State, as other private corporations are chartered, but its officers and membership are privately selected. It is said that the corporation is composed of practicing dentists, organized for the promotion of scientific knowledge and skill in the practice of the profession, and well informed on the subject, and possessing a peculiar interest in the profession.

But the court may not weigh considerations of wisdom and expediency for the purpose of determining the constitutionality of legislative action. If the Legislature has power to go outside of the government established by the Constitution and confer governmental power elsewhere, then the discretion as to where it will be vested, and the determination of the expediency of the investure in one place rather than another, is for the Legislature and not for the courts.

If the Legislature should attempt to invest the State Dental Association with power to appoint members of the State Highway Commission, the courts could not hold the statute unconstitutional because in their judgment it would have been wiser to vest that power in an association of highway engineers. Such an enactment could only be stricken down upon the ground that the Legislature had no constitutional power to vest a governmental function elsewhere than in one of the three departments of the government created by the people in their Constitution. * * *

The Legislature has set up monopolies in the public utility field for the public good, but this does not justify the conclusion that it may vest in a public utility corporation power to appoint the members of the Public Service Commission, nor that it may vest in a labor union power to appoint members of the Workmen's Compensation Board.

Whether the result reached in the Overshiner case, supra [Overshiner v. State 1901, 156 Ind. 187, 59 N. E. 468, 83 Am. St. Rep. 187, 51 L. R. A. 722)], was correct upon the ground that the members of the board appointed by the Dental Association were commissioned by the Governor, and hence became his appointees if the appointment by the Dental Association was void and of no effect, or whether the members of the board, being de facto officers, the legality of their appointment could not be collaterally attacked, we need not decide.

It may be assumed that the result reached in the case, the affirmance of a conviction in a criminal case, was correct, but we cannot approve of the view expressed in the opinion that the Legislature has authority to delegate sovereign governmental powers to agencies outside of the government established by the people in the Constitution. The views expressed in the opinion are squarely in conflict with the many cases above referred to, which confine the legislative discretion in providing for appointments within the provisions for division and delegation of the governmental powers, and it is in conflict with the case next discussed.

About the ILB - Format problem

Some of you may have noticed that the right column of the blog is now at the very bottom of the blog, rather than where it belongs. I'm trying to get things back to normal, but have not yet been successful. Sorry. You will know when I have succeeded ...

Responding to the Indianapolis Starstory published December 5th, Marion County's chief public defnder, David Cook, has a featured letter today in the Star. Access it here. A quote:

I was quite surprised and somewhat baffled when I read The Star's article, "Public defender pleads for space." Later in the day the same article was reprinted under the headline "Defender has cash, won't hire." While both are technically true, the spin in the headlines and the article as a whole are misleading. A fair interpretation of these articles suggests that I am trying to leverage this situation to get plush office space. Nothing could be further from the truth. Here are the facts.

Courts - Status report on the availability and citation of not-for-publication opinions, at both the state and federal levels

Two concepts here need to be distinguished: (1) unpublished, and (2) non-precedential.

In the federal court system, "unpublished" no longer means unindexed and generally unavailable to the public. The question remaining in the federal system is whether the rules should be changed to allow these decisions to be cited -- i.e. to have precedential value.

In Indiana, the Court of Appeals panel issuing an opinion may designate it "not-for-publication." Because this large body of decisions is both unindexed and generally unavailable, the question of whether or not a particular NFP decision should have precedential value is pretty much a non-issue -- no one outside the court system and the parties to the case generally knows about it (although paper copies of the opinion are available if one asks for the case by name).

And on July 13, 2005: "In Indiana, as noted earlier, opinions designated by the Court of Appeals panel as 'not-for-publication' are neither generally available nor citeable. But they are public documents. Why should they not be made available online, along with the other rulings of the Court of Appeals?"

The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The justices' vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts. Currently, four federal circuits ban the citation of unpublished opinions outright, while six others discourage it.

Here are some of my comments from that entry:

The ILB has had numerous entries over the past several years on the use of not-for-publication opinions by the our state Court of Appeals. (Ironically one was earlier this afternoon.)

The difference is that in the federal court system, "unpublished" decisions are in fact readily accessible online, but as Mauro's story points out, "The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it."

At the Indiana state court level, Appellate Rule 65 allows Court of Appeals judges to designate opinions as not-for-publication if they meet the Rule's criteria. Rule 65(D) provides:

a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.

In addition, the Court does not publish the opinions on its website and they are not posted by the commercial legal services. The only way to obtain a not-for-publication opinion is from the Clerk of the Courts -- if you know its name.

It became easier to know the names last fall when the Clerk agreed to provide its list of NFP decisions to the ILB at the end of each week. The first such list was posted August 19, 2005. (Of course, this list is also available via the commercial services.) The lists show that over 70% of the Court of Appeals opinions are unpublished.

The ILB has posted numerous entries over the past few years arguing that the rationale behind the "NFP" designation has passed. The "NFP" designation of Indiana Court of Appeals opinions means two things: (1) the ruling is neither posted online nor published; (2) the opinion does not have precedential value (except in narrow circumstances).

One reason behind the rule, the cost of printing, of course no longer exists -- it has vanished with digitization. Another rationale I've heard, and this goes to the precedential aspect, is that this is an (some might say "paternalistic") effort on the part of the court to relieve attorneys of the burden of unnecessary reading. That too, however, seems grounded in an earlier time, without the research technology of today's world.

At least 3 out of 4 Court of Appeals opinions issued are designated NFP. As of 8/19/05, the ILB began posting, with the agreement of the Office of the Clerk of the Indiana Courts, the weekly list of the Court's NFP opinions. One thing this list of the week's NFP opinions makes clear is the enormous amount of work the Court of Appeals judges produce. These NFP opinions are not brief notations, as on the federal level, but full-blown opinions. We are only privy to at most 25% of the work product of the Court of Appeals judges. This makes it more difficult for us when the time comes to "judge the judges."

Opinions designated by the Court of Appeals panel as "not-for-publication" currently are neither generally available nor citeable. But they are public documents. Why should they not be made available online, along with the other rulings of the Court of Appeals?

A step forward. On August 23, 2006, the ILB was able to announce, via a communication from Chief Judge Kirsch of the Court of Appeals, that the Court would begin immediately posting its NFP opinions online. Never one to miss an opportunity, I quickly asked the Judge: "This is step one. Any thoughts as to step two -- eliminating the NFP designation altogether?" His prompt and thoughtful response:

As to whether the posting of NFP opinions will be a first step toward the designation of all opinions as for publication, we will have to see.

The issue is which has been much debated, and the citability of federal NFP opinions will be sure to continue the debate. By having our NFP decisions more readily available, the bar and others interested in the issue will have more understanding of what is at hand. Our work has always been a matter of public record, but as you have noted, accessing that record has been difficult at times, especially for people without ready access to the State House. The posting of NFP decisions should help significantly in this regard.

I have wavered over the years about the advisability of designating every opinion as for publication. On the one hand, I see the tremendous value of transparency. On the other, my concern about designating all opinions "for publication" has nothing to do with the publication of the opinions and everything to do with their citability. You note that this morning we handed down fifteen NFP decisions. We hand down, on average, more than thirty NFP decisions and more than fifteen for publication opinions per week. If all of the NFP decisions were for publication and, thus, citable, the volume of law in this state would increase by a multiple of three. Everyone doing legal research would be affected by this increase. It would drive up the cost of legal research significantly.

Ultimately, I think the issue will turn upon whether the benefits of transparency justify the increased cost. I look forward to the debate.

Back to the federal rules. The changes to the federal rules mentioned above became final December 1st, 2006 - see this Dec. 2ndILB entry quoting the official transmittal letter:

Proposed new Rules 32.1 permits the citation in briefs of opinions, orders, or other judicial dispositions that have been designated as "not for publication," "non-precedential," or the like and supersedes limitations imposed on such citation by circuit rules. New Rule 32.1 takes no position on whether unpublished opinions should have precedential value, leaving that issues for the circuits to decide.

Howard Bashman of How Appealing, who has written extensively on the federal rules citability issue, wrote Nov. 27th:

FRAP 32.1, permitting citation to unpublished and non-precedential federal appellate court rulings, stands as the most controversial amendment to the Federal Rules of Appellate Procedure of all time. Nevertheless, this new rule is guaranteed to arrive on the scene not with a bang but with a whimper. That's because, although FRAP 32.1 officially takes effect on Dec. 1, the rule will only apply to unpublished and non-precedential opinions issued on or after Jan. 1, 2007. As a result, the impact of FRAP 32.1 will probably be imperceptible for many months in those circuits that, before the new rule's advent, had prohibited any citation to their own unpublished and non-precedential decisions. And because non-precedential opinions will continue to lack precedential value even after FRAP 32.1 takes effect, savvy advocates will only cite to unpublished or non-precedential rulings in the absence of any equally relevant published and precedential decisions.

After advocates begin citing to unpublished or non-precedential opinions in reliance on FRAP 32.1, there will still be additional delay until the cases are either argued or submitted on the briefs for decision. Thus, it could be rather late in 2007 before we first begin to see how those federal appellate courts that had previously prohibited any citation to their own unpublished and non-precedential rulings are reacting to appellate briefs that permissibly cite to such decisions in reliance on FRAP 32.1.

One might thiink this would be the last word for a while on the unpublished or non-precedential opinion citability issue. But not so, at least at the state level.

Kentucky. Last week (Dec. 7th), Kentucky attorney Diana Skaggs wrote in her law blog:

It’s official: effective January 1, 2007, unpublished Appellate Opinions rendered after January 1, 2003 may be cited for consideration if there is no published opinion on point.

Section (4)(c) of CR 76.28 will read:

(c) Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.

As a member of the Kentucky Supreme Court's Civil Rules Committee, I suggested making the rule prospective so all we thought we knew about the law wouldn't have to be revisited, all our treatises wouldn't have to be updated with old unpublished cases, and we wouldn't have to do legal research on every issue even if we think we know the law just to see whether in the past there was some old unpublished case. I don't know why they settled on applying the law only to 2003 and later opinions, but I am glad it was limited to some extent and I am also pleased it applies only when there is not published authority on point.

Arizona. Then yesterday (Dec. 8), thanks to a link from Howard Bashman, I saw this story in the Arizona Daily Star. If you have read this far, you may have a feeling of deja vu in reading the Arizona story:

PHOENIX — Last month, the state Court of Appeals issued a 54-page ruling on the controversial issue of whether state lawmakers are constitutionally required to provide more cash to certain public schools.

To the public affected, however, the decision was essentially invisible because the three judges issued it as a "memorandum decision."

That designation means the legal reasoning and conclusions reached cannot be cited as precedent in future cases. It also means the rulings are not available to the public on the court's Web site.
The only way to find out that the judges ruled at all is to go to the court's office and manually go through those files.

And there are a lot of them. About nine out of every 10 appellate-court rulings are designated as memo decisions.

Now lawyers are moving on two fronts to force the court to make more of its rulings accessible to the public.

One proposal by a subcommittee of the State Bar of Arizona would require these memorandum decisions be more publicly available. Now, a printed copy is filed with the clerk's office. But, unlike formal "published" opinions, they are not available on the court's Web site.

More significant, the proposal also would allow those memo decisions to be cited as precedent in other cases when there is no published decision on point.

"The Court of Appeals is a public entity; it's our government in action," said attorney Thomas L. Hudson, who supports that plan. "As a general principle, shedding light on the way government functions is important in a democracy."

A more far-reaching proposal by attorney Richard Coffinger would have all decisions be formally published unless the judges certify there is a specific reason not to.

But the ideas, which would have to be approved by the Arizona Supreme Court, are getting some opposition.

Appellate Judge Donn Kessler said there is one big reason he and his colleagues decide not to publish a ruling.

"A good percentage of the briefs we get are either extremely poorly written, or an issue is not properly presented, or the record is not there," he said. Kessler said it would be wrong to put out a published decision, which then automatically could be cited as precedent, in those kinds of cases.

Ruth McGregor, chief justice of the Arizona Supreme Court, also is cool to the idea. McGregor, who was an appellate judge before being named to the state's high court, conceded there's something else at issue. Judges who are faced with 120 to 150 rulings a year just don't take the same amount of time in their rulings when they know they won't be published.

"You only have so many hours each day and weekend and night," she said. "There's only a certain amount of time and care you can take in decisions," McGregor said. "When they're unpublished, it allows a little more freedom. So long as you get to the right result you don't have to be quite so careful about the language that you're using."

But Coffinger is particularly critical when the appellate judges issue memo decisions as they overrule trial court rulings. He said their general lack of public availability means voters, who decide whether to retain both the trial judges in Pima and Maricopa counties as well as the appellate judges, don't get a full opportunity to evaluate the performance of those judges.

Hudson's alternative approach to make these memo decisions more public would not change the rule of what is or is not published. But it would let attorneys arguing a case cite those decisions if it helped their case, something now prohibited.

Hudson said it is wrong to let the judges who write a ruling decide for themselves when it can be cited. He said that effectively amounts to letting the appellate judges "hide" a decision by designating it a memorandum ruling.

One last thought, for now. I was struck by this statement by Scott E. Gant: "Whether an opinion of an appellate court has or lacks precedential value should be a function of what the opinion contains rather than the label attached to it." From the abstract to Gant's article in the Boston College Law Review:

This article argues the notion that judges can and should determine an opinion's precedential value at the time they issue it is based upon a flawed and outdated view of how the law develops. Whether an opinion has made "new law" or is otherwise significant is a judgment best made with the benefit of time, and with input from lawyers, litigants, and other judges.

Howard Bashman of How Appealing is to be thanked (yet again) for spotting this article. (For more, including links, start at this ILB entry from Oct 5th.)

Ind. Decisions - Still more on: 7th Circuit practitioners, beware!

Recall the discussion late last month about the 7th Circuuit opinion in Smoot v. Mazda Motors, where, to quote an ILB reader who listened to the oral argument, "Judges Posner and Easterbrook flay both counsel like they were pulling the wings off of a fly"?

Howard Bashman's Monday (Dec. 11th) commentary for Law.com will be this article, titled "Have 7th Circuit Judges Gone Off the Deep End?" After thoughtful analysis, Bashman concludes: "I continue to enjoy the intellect and writing of Judge Posner and Chief Judge Easterbrook, but sometimes, to use Judge Posner's own words, they do cross the line and become fusspots and nitpickers when the question arises of berating or sanctioning attorneys for minor and inconsequential transgressions."

Ind. Courts - "Judge removes self from burglary case"

A judge who refused to accept a plea agreement because of concerns about the leniency of the binding sentence has removed himself from the case.

St. Joseph Superior Court Judge Jerome Frese's action means the case of Justin D. Maike, who was on probation when he was charged in March with felony attempted burglary, will be assigned to another judge.

Maike's plea, which included no prison time, is null and void, according to the judge's order.

Frese's removal order came about six weeks after the judge balked at Maike's plea deal and asked Prosecutor Michael Dvorak to personally approve the agreement by Election Day.

Dvorak never responded to the judge's request.

Frese recused himself according to state criminal courts rules which allow for a change of judge to prevent bias or prejudice. The judge's order cited no specific reasons for stepping aside.

Ind. Law - "Property owners across Indiana are fighting annexations"

Cathy Kightlinger of the Indianapolis Star has an article today on efforts to unite property owners fighting annexations. (Typing "annexation" into the ILB search box produced a slew of earlier entries.) A few quotes from today's story:

Indiana’s law allows property owners of an area in line for annexation to challenge the move if they can produce one of the following:
• A petition with signatures from at least 65 percent of the property owners in the annexation area.

• Signatures from property owners that represent more than 75 percent of the assessed value in the annexation area.

If a petition drive is successful, a judge hears arguments from both sides before deciding whether the annexation should be allowed. Organizing successful opposition under those rules can get expensive, opponents say.

“A lot of cases, it’s a cumbersome job to fight annexation, so they kind of give up. They are like, ‘OK, what can we do, fight city hall?’ ” said [Fishers homeowner Rachel] Quade. A lot of people on her list live in rural areas and don’t have a lot of disposable income, she added.

Geist-area residents have raised about $90,000 for their battle, Quade estimated. Residents in southwest Clay Township, outside Carmel, have spent much more in their fight, which is awaiting a decision from the Indiana Supreme Court. Home Place residents, who also are battling annexation efforts by Carmel, have raised more than $60,000 for their fight, said Matt Milam, president of Concerned Citizens for Home Place.

“Home Place does not fit in the Carmel mold. The median income is much lower and the housing values are lower,” said Milam, who supports changing the law to make it easier to oppose annexation. “Most of (residents’) income is probably already set to be spent on their bills.”

Milam said the 65 percent threshold is too high. “It’s not a level playing field,” he said. “If you run for office and you get 51 percent of the vote, you win.”

The Association of Indiana Counties is lobbying for annexation laws to change, too. When properties are annexed into municipal boundaries, counties lose important pieces of the tax pie, said David Bottorff, executive director for the association. State Rep. David Orentlicher, D-Indianapolis, says he plans to draft annexation legislation for the upcoming session of the Indiana General Assembly. His district includes parts of Clay Township that Carmel officials want to annex.

“It’s important that we make sure that homeowners have . . . a say and control of their own destiny,” he said.

According to Orentlicher, who has introduced unsuccessful annexation reforms several times, possibilities could include:

• Reducing the percentage of homeowners in a proposed annexation area who must sign a petition for a challenge.

• Forcing municipalities that are defeated in annexation efforts to pay litigation costs of the homeowners who opposed them. State Sen. Beverly J. Gard, R-Greenfield, also plans to submit legislation. Gard said she is working on three bills: two that are similar to Orentlicher’s and one that would lessen the incentive for municipalities to annex by reducing the amount of taxes they would get out of it.

Ind. Decisions - More on workplace bullying decision

A workplace bullying judgment against an Indianapolis heart surgeon that drew national attention last year was struck down Friday by the Indiana Court of Appeals.

The court reversed the civil jury award of $325,000 against Dr. Daniel H. Raess, former chief heart surgeon at St. Francis Hospital, for verbally assaulting a hospital staffer. The case was sent back to Marion Superior Court for retrial.

The appeals court said the judgment shouldn't stand because the lower court allowed testimony that unfairly prejudiced the jury against Raess.

The disputed testimony by Gary Namie, director of the Workplace Bullying & Trauma Institute in Washington state, "allowed the jury to infer that Raess committed assault because that is what 'bullies' do," the appeals court said in its eight-page ruling.

The court also faulted Superior Court Judge Cale Bradford for failing to instruct the jury that there is no legal basis for a claim of workplace bullying.

Ind. Gov't. - "Visiting Statehouse? Keep the heat at home"

"Visiting Statehouse? Keep the heat at home: Weapons restriction to start next year, but not for legislators, judges" is the headline to a story today in the NWI Times, by Patrick Guinane. Some quotes:

INDIANAPOLIS | The right to bear arms soon will stop at the Capitol steps, but not for those who make the laws.

The state is getting ready to purchase metal detectors and x-ray baggage scanners that will be installed at Statehouse entrances in Indianapolis early next year. And new rules, which drew no opposition at a public hearing Friday, will prohibit visitors from bringing knives, stun guns and firearms into the Capitol, adjoining Government Center offices and nearby parking garages.

But the new policy won't apply to police officers, judges or members of the General Assembly who hold licenses to carry concealed weapons, including state Sen. Vic Heinold, R-Kouts.

"I've never carried it into the building myself," he said. "I know others do. I have never felt the need."

Three years ago, a Fort Wayne newspaper reported that 25 of the Indiana's 150 state legislators held concealed weapons permits.

"Basically I got it just strictly for traveling purposes because I'm out on the road a lot late at a night and a little more identifiable in my role (as a legislator)," said Heinold, the only Northwest Indiana legislator with a concealed carry permit.

Secretary of State Todd Rokita has had a concealed handgun permit for years, but the Munster native said he doesn't bring his .40-caliber Smith & Wesson to work. Still, the Republican, who was elected to a second term last month, said he's disappointed that Indiana is moving ahead with the stricter Statehouse security measures.

While the new measures will allow legislators with permits to carry concealed firearms in the Statehouse, statewide office holders like Rokita will not be allowed to do so.

"It seems that ever since 9-11, we have changed the way we live, at least in terms of access to our public places," Rokita said. "And that's unfortunate, because when you change the American way of life, you let the wrongdoers win."

State employees have been issued electronic ID badges that give them access to the Capitol after hours and on weekends. The metal detectors and the rules against guns will be implemented in February or March, said Kevin Ober, deputy commissioner for the Indiana Department of Administration, the state agency that oversees the Statehouse and surrounding properties.

Not a single opponent, he said, showed up Friday at the Indianapolis hearing on the new rules, which still must be signed by the attorney general and Gov. Mitch Daniels.

First off, how many people even knew about the hearing? With the changes to what had been the Indiana Register put in place by the legislature, it is nearly impossible now for the general public, or even experts on rulemaking, to have any idea about what is going on. (More about this in entries next week.)

Niki Kelly of the Fort Wayne Journal Gazette had a lengthy story on what was then a proposal to increase statehouse security, last Sept. 7th. This line particularly caught my eye at the time: "Tunnel access between the buildings would also be shut off to the public, according to the recommendation." See also this entry from Sept. 9th, dealing with legislators carrying guns.

As for judges carrying guns, The National Law Journal had a long article on the subject last week. Dated Dec. 7th, the story by Amanda Bronstad concludes:

On Jan. 1, Kansas plans to permit judges and whomever they designate to carry concealed firearms in the courtroom. Phillip Journey, the state senator who authored the bill and a practicing attorney, said he spent a decade seeking to overturn a blanket prohibition on firearms in the courthouse.

"If I had a judge's permission, I'd do it every day," he said of bringing a gun into the courtroom. "Guns are like lawyers: Better to have one and not need it than need one and not have it."

Friday, December 08, 2006

INDIANAPOLIS – A Fort Wayne woman shot while waiting in line at the downtown Fort Wayne Taco Bell drive-through six years ago can sue the restaurant, claiming lax security, according to an Indiana Court of Appeals ruling.

A Wells County judge originally ruled against Sonya Winchell, but the appellate panel found the restaurant owed her a duty to ensure her safety and a jury should decide whether Taco Bell met that obligation.

“This was a hard-fought appeal, and we had to go to a lot of effort,” said Samuel Jarjour, Winchell’s attorney. “They recognized the duty to protect their own employees but not their customers.”

He believes the case ruling could kick-start settlement negotiations.

Attorneys for Taco Bell did not return a message seeking comment.

According to the ruling, Winchell went to the Taco Bell, formerly at West Washington Boulevard, about 3 a.m. Feb. 3, 2000. Remeko Guy and Ariel Graham were in a vehicle in front of her at the speaker and other cars lined up behind.

Guy and Graham were taking a long time placing their order and then got out of their car. At that point, Winchell yelled out her window for them to hurry up, saying “we are hungry.”

Guy approached Winchell’s car, stuck his head in the window and began swearing. Winchell then, according to the ruling, drilled him in the nose. He pulled a gun out of his pants and shot Winchell.

Guy was convicted of attempted murder and received a 40-year prison sentence.

The Court of Appeals found there is long-standing precedent that “proprietors owe a duty to their business invitees to use reasonable care to protect them from injury caused by other patrons and guests on their premises, including providing adequate staff to police and control disorderly conduct.”

Winchell contends in her suit that Taco Bell was aware of the potential for violence, as evidenced by its closing the interior of the restaurant at midnight. Also, the restaurant had installed a closed-circuit video monitoring system equipped with a panic button and hired off-duty police officers for security.

But on that Wednesday night there was no security guard and the video monitoring system was in a closet not readily accessible to employees.

Ind. Decisions - Transfer list for week ending December 8, 2006

Here is the Indiana Supreme Court's transfer list for the week ending December 8, 2006.

Nearly three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

List of Cases Granted Transfer and Awaiting Decision. The ILB has constructed what will be a dynamic table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. Access 11/26/06 list here. To be updated Sunday 12/10/06.

Courts - Florida judges in the news

On March 29th the ILB had an entry including this quote from an AP story:

SANFORD, Fla. -- A judge who had 11 people arrested for accidentally going to the wrong courtroom told an ethics board he was "horrified" by what he had done and blamed the problem on attention deficit hyperactivity disorder.

Seminole County Judge John Sloop, 57, said he hadn't been diagnosed with ADHD before the incident but now takes medicine and sees a psychologist and psychiatrist.

A judge who jailed 11 people because they were late for traffic court after being directed to the wrong courtroom lost his job Thursday. The Florida Supreme Court unanimously ruled he was unfit to remain on the bench.

The justices said the jailing and strip searching of the 11 misdirected motorists capped a series of complaints of intemperate conduct against Seminole County Judge John Sloop, 57, of Sanford, Fla.

"Judge Sloop's indifference to the anxiety, humiliation and hardship imposed upon these 11 citizens reflects a callous disregard for others that is among the most egregious examples we have seen of judicial authority and lack of proper judicial temperament," the high court wrote in an unsigned opinion. * * *

They concluded Sloop's ADHD treatment was "too little, too late" and that he had "irreparably damaged public confidence in his judicial authority."

The opinion focused on his decision to jail the misdirected motorists although two other judges and a bailiff had told him they were not to blame.

Another judge began paperwork to release them while Sloop was out running a personal errand, but they were not freed until they had been strip searched and spent nine hours behind bars, the high court noted. The justices wrote that "he just did not care."

Sloop later told Chief Judge James Perry he couldn't understand what the "big deal" was.

"The arrest of 11 citizens and their continued confinement for nine hours is a very big deal," the high court wrote. "Judge Sloop's callous disregard for these individuals was the antithesis of his judicial obligations."

The state Constitution does not authorize the high court to award attorney's fees arising from Judicial Qualifications Commission proceedings, the majority opinion said.

Holder's lead attorney questioned the decision.

"This puts a wrongfully accused judge in the position of making a Hobson's choice between loss of reputation and removal from the bench on one hand," attorney David B. Weinstein said in a prepared statement, "and mounting an effective defense - which could lead to financial ruin - on the other."

Six months ago, attorneys for the JQC and Holder argued before the court after the judge made an unprecedented request for the ethics body to foot his $1.8-million legal bill. Holder said he was entitled to recoup fees because the misconduct charges were connected to the performance of his official duties.

The judge, who sits on the civil bench, spent two years fighting allegations that he plagiarized portions of a 1998 research paper he wrote for a course at MacDill Air Force Base. A JQC hearing panel dismissed the charges after a trial last year and recommended that Holder be awarded costs.

The Constitution expressly allows the court to grant costs in JQC proceedings. But it does not specifically address attorney's fees, the five justices in the majority said.

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

United States Fidelity and Guaranty Company (“USF&G”) appeals from the trial court’s order granting the petition of Hartson-Kennedy Cabinet Top Company, Inc. (“Hartson”) to perpetuate the testimony of William H. Rea pursuant to Indiana Trial Rule 27(A). USF&G raises a single issue for our review, namely, whether the trial court abused its discretion in granting Hartson’s Rule 27(A) petition. We affirm. * * *

Hartson’s petition to perpetuate Rea’s testimony epitomized the purpose of Rule 27(A), as Hartson sought only “to memorialize evidence . . . already known.” Sowers, 577 N.E.2d at 252. Hartson faced an impediment to actual litigation and declaratory relief against USF&G. Further, Rea’s advanced age, combined with the extensive passage of time since the creation of the alleged insurance policies and the lack of alternative sources for the information Rea possessed, demonstrates sufficient grounds for the trial court to have concluded “that perpetuation of the testimony may prevent a failure or delay of justice.”

James H.S. Olds, III (“Olds”) appeals from the trial court’s grant of summary judgment to Steven and Rita Noel (“the Noels”) on his negligence claim. Olds is a mail carrier for the United States Postal Service. On February 20, 2003, Olds was injured when he allegedly slipped on snow and ice that had accumulated on the sidewalk and stoop of a residential, single-family dwelling owned by the Noels, which was being rented at the time by two other persons not a party to this action. Olds claims that the Noels owed him a duty of care, as an invitee, to maintain the premises in a safe fashion, specifically by removing accumulated snow and ice from the sidewalk and stoop. We find that the Noels did not owe a duty of care to Olds under these facts, and we reject Olds’ invitation that we extend the recognized duty of care owed by a landlord to invitees at multi-unit rental dwellings to cases involving single-unit rental dwellings. We therefore affirm the trial court. * * *

Under the existing rule, the question of duty turns not on the characteristics of the tenant but on the characteristics of the rented premises. A landlord is held liable for rented premises inasmuch as those premises contain common areas or the landlord assumes responsibility for the premises under the lease or by operation of law. Otherwise and to the extent that a landlord has transferred control and possession of the premises to a tenant, the tenant is liable. Olds ignores this fact, which provides a legal remedy under the existing rule if a tenant in control and possession of the premises does not meet his obligation to maintain that premises in a safe manner. Indeed, such a remedy, though not pursued, was available in this case. The injured party has a cause of action against the tenant. The “vacuum” of which Olds speaks is illusory. Absent any sound, concrete logic to support Olds’ public policy argument, we decline to shift liability ordinarily resting with tenants in control and possession of a premises to landlords who have relinquished such control and possession. Affirmed.

The following issue is dispositive: whether the trial court committed reversible error in allowing a witness to label Raess a “workplace bully.” * * *

Doescher claims that Raess has not established the third part of the inquiry. He argues that it was readily apparent to the jury that “workplace bullying” was not a recognized cause of action and that, therefore, the trial court’s instructions pertaining to assault and intentional infliction of emotional distress were sufficient. Under the facts of this case, we must disagree. Given the confusion engendered by the admission of Namie’s testimony and by trial counsel’s references to and plea for a “workplace bullying” verdict, we conclude that the substance of the tendered instruction was not covered by the trial court’s instructions. Accordingly, the trial court abused its discretion in refusing to give the instruction.

Because the probative value of Namie’s testimony was substantially outweighed by the unfair prejudice to Raess, we must reverse.

Here is the report of the trial court decision, via this ILB entry from 3/5/05, quoting from the Indianapolis Star:

The award to Joseph E. Doescher, 44, stemmed from a Nov. 2, 2001, confrontation between the two men during which Raess was accused of screaming and lunging toward Doescher.

Doescher worked at the hospital as a perfusionist, operating equipment that oxygenates the blood during surgery.

The jury declined to award additional punitive damages against Raess in what one expert said was the first workplace bullying case in history.

In his closing statement, Doescher's attorney Kevin Betz of Betz & Associates, Indianapolis, asked the jury to award his client $324,000 in lost wages and suggested the jury award a greater sum for pain and suffering.

Wayne House appeals from the trial court’s order granting summary judgment in favor of First American Title Company (“First American”) in an action brought by House, alleging fraud and violation of the Unfair Claims Settlement Practice statute. House contends that he is entitled to summary judgment, and argues that the trial court incorrectly held that an injunction against using a common septic system situated on property purchased by House is not covered by the title insurance policy issued to him by First American. Concluding that the injunction did not constitute a defect in or lien or encumbrance on House’s title to the property, and did not affect the marketability of such title, we affirm the trial court’s grant of summary judgment in favor of First American.

Ind. Courts - Still more on: Carmel annexations before both Court of Appeals and Supreme Court

Attorneys for both sides were scheduled to argue the case Wednesday in the Indiana Court of Appeals. That court has delayed the proceedings until the Indiana Supreme Court decides Carmel's appeal in the southwest Clay Township annexation case.

Earlier this summer, the southwest Clay case was expedited to the Supreme Court after the city argued the dispute was so important that it should skip the appeals court. No date has been set for oral arguments before the Supreme Court.

Today Ruthhart wties, in a story headlined "Annexation cases still stuck in the system," that:

Two Carmel annexation cases still are stalled in the court system.

Carmel's attempt to annex 8.3 square miles in southwest Clay Township is before the Indiana
Supreme Court, while the city's case to annex Home Place awaits a ruling at the Indiana Court of Appeals.

The City Council voted to annex both areas in November 2004. More than 65 percent of property owners in those areas fought the annexation, raised money and took Carmel to court. In both cases, Hamilton County Judge William Hughes ruled Carmel could not complete the annexations.

Carmel has appealed both decisions, and the southwest Clay case was expedited to the Indiana Supreme Court in August, skipping the appeals court. The Indiana Court of Appeals has delayed the Home Place case until the Supreme Court rules on southwest Clay.

On Nov. 22, Carmel's attorneys requested the Supreme Court hear oral arguments in the case. Attorneys for residents in southwest Clay have argued written briefs would be enough for the court to make a decision.

Attorney Stephen Buschmann said he isn't counting on a hearing by the end of the year. Buschmann represents NOAX and the Concerned Citizens for Home Place, who also have opposed annexation.

"My gut guess is that with the holidays, I doubt they'll hold a hearing in December," Buschmann said

Meanwhile the Home Place case remains on hold in appeals court.

"The two cases really are quite different," Buschmann said. "But the court of appeals still wants to wait and see what the Supreme Court says."

I'd say no hearing in December is a pretty safe bet. The case before the Supreme Court is Case Number: 29 S 00 - 0608 - CV - 00300, CITY OF CARMEL -V- SOUTHWEST CLAY TOWNSHIP LANDOWNERS. The docket shows a long list of amici. The trial court opinion is available, via the ILB, here.

Ind. Gov't. - "Lawyers to Catch More Work with New Benefit Disclosure Rules"

This story from the National Law Journal, headed "Lawyers to Catch More Work with New Benefit Disclosure Rules: Public entities must detail what is owed and how they will pay for benefits." Some quotes:

A far-reaching change to accounting rules for public employers has attorneys across the country braced for a surge of legal work.

The new rules, which will be phased in starting this month, require government entities -- from cities to universities to school districts -- to calculate and report how much they owe for health care costs and other post-employment benefits for their present and future retirees.

Prompted in part by the recent demise of employee pensions among several companies in the private sector, the new rules call for public employers to disclose the amount they have promised to retirees for health care coverage, life insurance, dental coverage and more. Importantly, public employers also will need to show how they will pay for those benefits.

The upshot for attorneys, particularly those in the public-finance area, is an expected avalanche of work from municipal governments, hospitals and any other public employers scrambling to comply.

"I've been in municipal finance for 31 years, and I've never seen anything like this," said Edsell "Chip" Eady, a partner in the San Francisco office of Nixon Peabody. * * *

The reporting changes stem from new requirements under the Government Accounting Standards Board (GASB), which now call for government entities to report two types of information. First, they must identify the annual cost of their OPEB obligations. Second, they must report the net OPEB obligations, meaning the difference between what they owe and what they have contributed to cover those costs.

Riding on the reported figures will be the entities' credit rating and, ultimately, their ability to borrow money.

The rules, which will affect thousands of municipalities and other public employers, will be phased in based on the size of the entity. Larger governments with annual revenue that exceeds $100 million must start disclosing their unfunded liabilities on all financial reports starting on Dec. 15. The new rules apply to governments with revenue between $10 million and $100 million starting on Dec. 15, 2007, with the smallest government entities reporting one year later.

This is interesting when read this in conjunction with this ILB entry from Jan. 11, 2006, quoting from a story by Jennifer Whitson, then at the Evansville Courier & Press (note especially the last two paragraphs):

Legislative leaders are considering changes to a lifetime subsidized health insurance perk for lawmakers, but a bill that would end the program appears doomed.

In 2001, then-Speaker John Gregg and President Pro Tem Robert Garton, R-Columbus, added a benefit for lawmakers, spouses and some staff who have served at least six years and one day on the job to be able to lock in their state-funded health insurance plan for life. * * *

In 2004, a handful of Republicans, including Troy Woodruff of Vincennes, ran against Democrat incumbents decrying the benefit as a luxurious perk. In 2005, Woodruff filed a bill to eliminate the perk. The bill never got a hearing.

Now, a change in national accounting standards is forcing states to publicly estimate the cost of these unfunded perks in their books by 2008. State Auditor Connie Nass put out a bid to get an actuarial study done on what this lifetime health insurance perk could cost taxpayers in future years.

Nass chose a bidder and drew up a contract, but the Indiana State Budget Agency announced Tuesday that they would not sign off on the study.

Ind. Decisions - More on yesterday's CAFO opinion

The Muncie Star-Pressreports today on yesterday's Court of Appeals opinion in Elizabeth Thomas v. Oolman Dairy , which was a not-for-publication opinion- the ILB summary is here (3rd case, along with links to earlier entries). Seth Slabaugh writes:

HARTFORD CITY -- A ruling by the Indiana Court of Appeals on Thursday helps a proposed 2,000-head Dutch dairy CAFO and rejects the arguments of remonstrator Liz Thomas.

The court found that the Blackford County Board of Zoning Appeal's decision to deny Oolman Dairy LLC a hearing on its second application for a special exception was "arbitrary, capricious, and contrary to law."

The 15-page ruling, authored by Judge John G. Baker of Bloomington, affirmed the judgment of Special Judge Marianne Vorhees of Delaware County. Judge Michael P. Barnes, South Bend, and Judge Margret G. Robb, West Lafayette, concurred.

The BZA conducted a hearing on the proposed CAFO on May 24, 2005, then tabled the case until June 7. After learning on that date that the BZA's attorney planned to recommend denial of the project on grounds that it failed to comply with performance standards, Gerwin and Marinke Oolman, formerly of The Netherlands, withdrew their application. Twenty-one days later, they filed a second application.

The BZA voted 3-2 to conduct a public hearing on the second application. But just before the start of that hearing, on Aug. 23, 2005, the BZA voted to terminate the hearing on grounds that the second application was similar to the first, and having the hearing would be unfair to the remonstrators and unduly burdensome to the BZA.

"The BZA's refusal to allow Oolman a public hearing on its second application and its failure to vote on either application has denied Oolman due process of law," Vorhees ruled. "The court further finds the BZA's refusal to hear evidence and to vote on the second application was arbitrary and capricious."

She ordered the BZA to schedule a new public hearing and to either approve or deny the project.

The BZA did so this past Aug. 16, voting 3-2 to approve the requested special exception.

"An agency action is arbitrary and capricious if it is 'willful and unreasonable, without consideration and in disregard of the facts and circumstances in the case, or without some basis which would lead a reasonable and honest person to the same conclusion,'" Judge Baker wrote.

Thursday, December 07, 2006

Ind. Courts - Answering machine demand causes judge to recuse himself

(ANGOLA) - A new judge will be needed in a bench trial over a Steuben Lakes Regional Waste District appeal filed last February following a decision by Steuben County Commissioners that a district rate ordinance was unlawful.

Magistrate Randy Coffey had been serving as Special Judge but he has recused himself from any further proceedings.

According to court documents, Coffey took the action to avoid the appearance of anything improper last Thursday after a message was left on his home telephone answering machine by a caller who said she was an agent for the Steuben County Lakes Council.

In the message, the caller demanded Coffey return her call.

Sue Myers from the Steuben County Lakes Council says that phone call did not come from her office and they did not authorize the call.

The bench trial began on November 22nd and was scheduled to resume on March 6th. That date has now been vacated and the two sides will have to agree to a new special judge.

Ind. Courts - More on: Mayor want to end Jefferson City Court

Updating this ILB entry from Dec. 1, which began with a quote from a LCJ story that "Jeffersonville Mayor Rob Waiz would like the city council to consider abolishing City Court. 'It could save taxpayer dollars,' he said in an interview, adding that it also would streamline city government," Larry Thomas of the Jeffersonville/New Albany News and Tribunereports:

Jeffersonville City Court is staying put after the City Council made it clear Monday it has no intention of disbanding the court at the end of next year.

During the council’s workshop Monday, Mayor Rob Waiz suggested that the panel might consider voting to abolish the court before the end of this year, to take effect at the end of 2007. Waiz said he wanted to at least study the matter in order to save the city’s general fund approximately $140,000, the difference between what is spent on salaries and benefits and the amount returned to the general fund from fines and fees collected by the court.

“Now is the perfect opportunity,” Waiz said.

But council members indicated during Monday’s workshop and regular meeting that they will not put Waiz’s request to a vote. * * *

City Court Judge Vicki Carmichael said the court over which she has presided for seven years handles 1,500 to 2,000 misdemeanor cases and 1,200 to 1,800 traffic tickets annually. She said the court collects more than $300,000 in fines and fees each year, between $35,000 and $45,000 of which are returned to the general fund.

Carmichael said state law allows her salary and the court’s chief probation officer’s salary to be “supplemented” from probation user fees. The judge said a portion of her pay already comes from PUF funds and that she is in the process of asking the State Board of Accounts how much PUF money can be used to offset the city’s cost for her chief probation officer.

Perkins said that he and City Council President Barbara Wilson met with Clark County Prosecutor Steve Stewart last week to discuss how disbanding City Court would affect the county’s judicial system. Perkins said he was told the result “would be devastating.” * * *

Carmichael, who takes over in Clark Superior Court 1 on Jan. 1, said dissolving City Court would “place an undue burden and a heavy burden on the county courts.” Carmichael and several council member said they suspect Waiz’s desire to abolish City Court is actually based on what they perceive as his irritation with the number of defendants waiting for pretrial conferences just inside City Hall’s main entrance each Tuesday.

“That wasn’t even my concern about introducing it,” Waiz said. * * *

Waiz contends that an increasing number of Indiana cities are disbanding their courts. According to the National Center for State Courts, there are 77 municipal courts in Indiana, including 48 in cities and 29 in towns. In Clark County, Charlestown, Clarksville, Jeffersonville and Sellersburg all have their own courts, with Sellersburg’s opening in 2004.

Carmichael is leaving City Court with a year remaining on her second four-year term, leaving Gov. Mitch Daniels with the responsibility of naming her replacement.

Jane Jankowski, a spokeswoman for the governor, said Jeffersonville attorney Scott Lewis and Floyd County Deputy Prosecutor Abraham Navarro were the only people to apply for the vacancy by the time the application period closed last Thursday.

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

KLR Incorporated d/b/a Subway Sandwiches and Salads (“KLR”) appeals from a decision by the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“Review Board”) affirming the findings and conclusions of an Administrative Law Judge (“ALJ”), which granted Jeffrey Howard’s application for unemployment benefits. KLR presents a single issue for our review, namely, whether the Review Board erred when it determined that KLR had not presented sufficient evidence to overcome the presumption that KLR received actual notice of the ALJ hearing. We reverse and remand with instructions.

Jason Burkett (“Burkett”) filed a petition in Cass Circuit Court for visitation to his minor son. His petition was denied and Burkett appeals pro se. Concluding that Burkett is entitled to a hearing on his petition pursuant to Indiana Code section 31-14-14-1, we reverse and remand for proceedings consistent with this opinion.

Appellant-intervenor Elizabeth Thomas appeals from the trial court’s order reversing the decision of appellee-respondent Blackford County Area Board of Zoning Appeals (the Board) and requiring the Board to hold an evidentiary hearing on an application for special exception filed by appellee-petitioner Oolman Dairy, LLC (Oolman). Finding that the Board’s decision was arbitrary, capricious, and contrary to law, we affirm the judgment of the trial court. * * *

As we concluded above, the Board accepted the withdrawal of the First Application without prejudice. Having done so, the Board is required by statute and by due process to hold a hearing on the Second Application. Ind. Code § 36-7-4-920(a) (“[t]he board of zoning appeals shall fix a reasonable time for the hearing of administrative appeals, exceptions, uses, and variances”); City of Hobart Common Council v. Behavioral Inst. of Ind., LLC, 785 N.E.2d 238, 246-47 (Ind. Ct. App. 2003) (holding that boards of zoning appeals must comply with due process and “the constitutional standards of being orderly, impartial, judicious, and fundamentally fair”). Indeed, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” McKinney v. McKinney, 820 N.E.2d 682, 688 (Ind. Ct. App. 2005) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Therefore, the Board was required as a matter of law to hold a public hearing on the Second Application and the trial court properly ordered it to do so. The judgment of the trial court is affirmed.

Ind. Courts - More money needed to complete Greene County courthouse

Apparently all is not well with the Greene County courthouse project, despite a number of previous positive reports (listed here). Nick Schneider of the Greene County Daily World reports:

The Greene County Commissioners voted Tuesday morning to request that the Greene County Council consider approving an additional $4 million in bond anticipation notes in order to provide funds to complete the courthouse renovation project.

The county council - which met in a closed door executive session with the county's litigation team from Indianapolis on Monday - is expected to act on the commissioner's request at its next meeting slated for 4 p.m. on Dec. 18.

If approved by the county council, the county would issue additional bond anticipation notes - known as BANS. This form of financing is like a line of credit, where only the amount needed is borrowed. The county will pay only interest on what is borrowed until the civil suit litigation currently pending against the design team, general contractor and related parties is resolved. The money received in litigation will be used to re-pay the BANS, according to board of commissioner's attorney Marilyn Hartman.

The $4 million requested will be used to fund approximately $2 million in additional construction costs, $1.2 million in additional engineering, project management and related construction costs; and $800,000 in litigation expenses. * * *

In the view of Board of Commissioner's President, Beard, the county is left with few options except to proceed with the renovation project as planned and hope a favorable court ruling is received. Work on the new addition has been completed and a variety of offices were permanently moved into the building and others were also temporarily moved to the new structure while work commenced on the renovation of the old courthouse in early October.

“The county really doesn't have many options. Until the project is finished, we won't be able to show a judge or jury what our damages are. Although we expect to recover our costs, none of the defendants are going to pay us in advance, so we are stuck,” Beard stated. “It's one of those things that is unfortunate, but this is our only option.”

He continued, “I want people to understand that this is a situation that we have to get it (the project) finished in order to determine what we are trying to accuse other people of being at fault of. Our lawsuit is now approaching $6.5 million, so it's unfortunate, but in order to get this, we have to get this building finished.” * * *

The $4 million additional cost will drive the overall cost of the project up to $16.5 million - $6.5 million above the original contract issued four years ago. However, a pending civil lawsuit filed in Owen Circuit Court, will attempt to recover the $6.5 million cost overrun because of numerous delays, engineering flaws, additional construction costs and litigation costs. * * *

Named in the suit filed by the Greene County Commissioners and the Greene County Building Corporation are the project's original design team of DLZ of Indiana and United Consulting Engineers - both based in Indianapolis; the general contractors - Weddle Brothers Construction Company based in Bloomington; Alt & Witzig Engineering Inc., of Carmel; Wayne A. Truex - a DLZ employee, who was the original engineer of record for the project; and Craig Burgess, the original architect of record for the project.

A trial by jury in Spencer has been set for Dec. 5, 2007. The court has ordered the case to go to mediation and the parties have agreed to finish those proceedings before Sept. 1, 2007, according to Hartman.

Greene County is represented in the case by Indianapolis law firm of Drewry Simmons and Vornehm LLP.

Ind. Courts - Judge likely will face censure

"Judge likely will face censure: Jurist charged after DUI arrest Monday" is the headline to Vic Ryckaert's story in the Indianapolis Star today, following on his story yesterday. Some quotes:

A Marion Superior Court judge accused of drunken driving this week likely will face a reprimand from the Supreme Court in the coming months but will not be taken off the bench.

John F. Hanley, 51, was driving erratically and narrowly missed colliding with an officer on the Northside late Monday, police said. His blood-alcohol level tested at 0.16 percent, officers said -- twice the level at which an Indiana driver is considered intoxicated.

Police arrested Hanley, impounded his car and booked him through the Arrestee Processing Center. He was later released without having to post a bond.

Hanley was in court and served on the bench Wednesday. He declined to comment on his arrest.

Historically, Indiana judges with drunken-driving arrests have faced sanctions from the Supreme Court on top of whatever criminal punishment they may receive.

Meg Babcock, a lawyer for the Judicial Qualifications Commission, declined to comment on Hanley's case but said the Supreme Court has disciplined five judges for drunken driving since 1986. Typically, judges facing a first drunken-driving offense were given a reprimand and allowed to remain on the bench.

In the most recent example, Hendricks County authorities dismissed criminal drunken-driving charges against Marion Superior Court Commissioner Israel Cruz, but the justices handed him a public reprimand July 25.

Cruz still works as a commissioner, an appointed judicial officer who hears cases and issues rulings.

Marion County Prosecutor Carl Brizzi officially charged Hanley on Wednesday with operating while intoxicated and public intoxication. No hearing date has been set because local judges -- all of whom are Hanley's colleagues -- are recusing themselves from the case. * * *

Hanley, who presides over Civil Court Room 11, had been the leading candidate to become the Superior Court's presiding judge when control of the executive committee gets handed to the Democrats in January. * * *

Hours before his arrest, Hanley and other judges and lawyers were among about 250 guests attending a holiday party at LuLu's Restaurant, 8487 Union Chapel Road. The party was thrown by law firm Bingham McHale, said firm spokeswoman Susan Kilkenny, and ran from 5 to 8 p.m.

After the party, Hanley went to Murphy's Steakhouse, 4189 N. Keystone Ave., where he had some drinks while waiting for a friend who never showed, according to a police report.

He got into his 2002 Chrysler Concorde and drove north on Keystone. Indianapolis Police Sgt. Brian Churchill was also driving north when police say Hanley veered out of his lane and forced the officer to swerve to avoid a crash.

The Star story is accompanied by a sidebar labeled "Since 1986, the Indiana Supreme Court has sanctioned five judges accused of drunken driving":

• Nov. 14, 1986: The justices issued a public censure to Marion Superior Court Judge Thomas Alsip, who was arrested on a charge of drunken driving in January 1985. After a second drunken-driving arrest in 1988, he resigned.

• April 23, 1987: The justices issued a private reprimand to Vanderburgh Superior Court Judge Maurice O'Connor, stemming from his arrest in September 1985.

• April 29, 1988: The justices issued a private reprimand to Jennings Circuit Judge Larry J. Greathouse, stemming from his April 1987 arrest.

• May 3, 1995: The justices issued a private reprimand to Marion Municipal Court Commissioner William R. Howell after he was convicted of drunken driving.

• July 25, 2006: The justices issued a public reprimand to Marion Superior Court Commissioner Israel Cruz after Hendricks County authorities dismissed a criminal case against him that alleged he drove while intoxicated in June 2005. [ILB - see this 5/7/06 entry, and this one from 7/25/06]

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

Sonya Winchell v. Remco Guy, et al. - "Because Taco Bell owed Winchell a duty as a matter of law and there are questions of fact regarding the elements of breach and causation, the trial court improperly granted Taco Bell’s motion for summary judgment. We reverse.."

Ind. Decisions - One today from the 7th Circuit

Janet M. Merillat brought this
action against her former employer, Metal Spinners, Inc.,
(“Metal Spinners”). She alleged age discrimination in
violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.; sex discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.; and a violation of the Equal Pay Act
(“EPA”), 29 U.S.C. § 206(d). Metal Spinners filed a motion
for summary judgment; the district court granted
that motion. For the reasons set forth in the following
opinion, we affirm the judgment of the district court.

In an action to recover damages for the negligent infliction of emotional distress, Indiana’s modified impact rule requires a claimant to demonstrate a direct physical impact resulting from the negligence of another. Where the physical impact is slight, or the evidence of the physical impact is tenuous, we evaluate the alleged emotional distress to determine whether it is not likely speculative, exaggerated, fictitious, or unforeseeable. In this case, we conclude that the emotional distress or mental anguish allegedly suffered by the plaintiffs is speculative, and thus their claim for emotional distress damages must fail.

This case arises from a passenger’s behavior onboard an aircraft five months after the September 11th terrorist hijackings of airplanes and less than two months after Richard Reid lit a match onboard a flight from Paris to Miami and attempted to detonate explosives hidden in his shoe. * * *

Apparently the alleged mental and emotional distress the Cooks experienced manifested itself in fear and anxiety at the time the events were unfolding. But this fear and anxiety were transitory, disappearing once the Cooks completed their flight. Since that time, in their own words, the Cooks have experienced feelings of being “bothered,” “concerned,” and “nervous.” But these feelings about the world around us in general and air travel in particular is the plight of many citizens in this country, living as we do in a post-September 11 environment. * * *

We do not suggest that the Cooks’ fear and anxiety during the flight were trivial. But there was simply nothing before the trial court, and by extension before this Court, suggesting that the Cooks’ fear and anxiety were anything other than temporary. And it is pure speculation to assume that the Cooks’ later feelings of being bothered, concerned, and nervous are causally related to the events aboard the flight. Because the physical impact in this case was slight to nonexistent, allowing an emotional distress claim to proceed based on the Cooks’ lingering mental anguish would essentially abrogate the requirements of Indiana’s modified impact rule. In essence we view the alleged mental anguish here as speculative. Accordingly the trial court erred in denying Atlantic Coast’s motion for summary judgment on this issue.

Conclusion. We affirm the trial court’s denial of Atlantic Coast’s motion for summary judgment on the question of federal preemption. We reverse the trial court’s grant of summary judgment in favor of Atlantic Coast on the Cooks’ breach of contract claim. And we reverse the trial court’s denial of Atlantic Coast’s motion for summary judgment on the Cooks’ claim for emotional distress damages. This cause is remanded.

John F. Hanley, 51, who was elected last month to serve his second consecutive six-year term on the county’s bench, was arrested late Monday after police stopped his Chrysler Concorde in the 4900 block of North Keystone Avenue.

Hanley was driving erratically and narrowly missed colliding with a police officer, according to a report. His blood-alcohol level tested at .16 — twice the legal level at which an Indiana driver is presumed to be intoxicated.

Hanley, a Democrat, presides over Civil Court 11. He was on the bench this morning and could not be reached for comment.

Hanley is the former chair of the state’s Alcoholic Beverage Commission, which put him in charge of the state’s Excise Police. Hanley resigned that post in 1999 after then-Excise Police Chief Gene Honeycutt and other officers were accused of having sex with strippers at clubs they were supposed to be monitoring.

Ind. Courts - "Ex-Clark County man to be retried for murder, rape"

An Evansville judge will preside over the retrial of a former Clark County man convicted in the rape and murder of a 15-year-old Spencer County girl.

Roy Lee Ward, 34, of Leopold, was convicted in 2002 of killing Stacy Payne with a knife inside her family's home in Dale on July 11, 2001.

His conviction was overturned by the Indiana Supreme Court on grounds that he was unable to receive a fair trial in Spencer County.

Plans to retry Ward were delayed in August when Spencer Circuit Court Judge Wayne Roell removed himself from the case at the request of Ward's attorneys.

Roell agreed with the defense contention that he might appear biased because he had said during Ward's sentencing hearing that "capital punishment was reserved for the worst of the worst and that the defendant certainly qualified."

Last week the Supreme Court named Vanderburgh Superior Court Judge Robert Pigman to take over the case. One of the first things he must do is decide where the trial will be.

In overturning Ward's conviction, the high court said the case should have been moved or a jury should have been brought in from elsewhere because of bias revealed in questionnaires completed by the Spencer County jury pool before the trial.

Roell had come up with a plan to select a jury from Clay County for a retrial in Spencer County. But defense attorney Steve Ripstra renewed a motion to move the trial to another county.

Ind. Courts - "Judge takes himself off case, asks for review"

Lake Superior Court Judge Thomas Stefaniak Jr. recused himself from a case Tuesday involving a Hammond woman serving a three-year probation who recently was charged with theft and forgery.

Stefaniak also took the unusual step of contacting the Indiana Supreme Court Judicial Commission himself to determine whether he had done anything wrong in granting bond to Martha A. Smith, 46, of Hammond, who was charged Oct. 24 with theft.

Stefaniak denied a motion by Deputy Prosecutor John Bober, who asked the judge to reconsider the $10,000 bail he set on the theft case filed Oct. 24 against Smith.

The $1,000 cash bond is the standard amount for a Class D felony, which carries a six-month to three-year sentence range.

Smith is accused of stealing money from an elderly, blind Highland woman she worked for as a caregiver. Court records allege Smith wrote checks to herself and others from the woman's account totaling $87,500. An additional charge of forgery was filed Tuesday. Smith has pleaded not guilty.

A magistrate issued a warrant for Smith and ordered she be held without bond, but defense attorney Casey McCloskey filed a motion asking Stefaniak to grant the bond, noting Smith is a long-time Hammond resident and doesn't pose a flight risk.

Typically when a defendant serving probation is charged with a new crime, the probation officer is given the opportunity to file a petition to revoke probation. A probation revocation petition was filed Nov. 13.

Stefaniak said he reviewed McCloskey's request for bond and granted it without a hearing on Nov. 16, prompting Bober to file a motion objecting to what he considered ex parte communication between McCloskey and the judge.

Stefaniak said he spoke with Meg Babcock, with the state Judicial Commission, who indicated that it would have been better to have held a hearing on the matter but that he didn't violate standards of judicial conduct.

Tuesday, December 05, 2006

A jury rendered a defense verdict on plaintiffs’ product liability and negligence claims re-lating to the collapse of the roof of a Ford Explorer in a rollover accident. The Court of Appeals found the trial court’s giving of a jury instruction on a presumption to have been reversible error. We hold that Indiana Evidence Rule 301, which authorizes presumptions to be given “continuing effect even though contrary evidence is received,” operated to authorize the jury instruction given here. * * *

The jury returned a verdict in favor of Ford. The Court of Appeals reversed and remanded for a new trial. Schultz v. Ford Motor Co., 822 N.E.2d 645 (Ind. Ct. App. 2005). It found that the trial court had committed reversible error when it gave the jury [instruction re presumption].

We hold that a presumption is properly given “continuing effect” under the last sentence of Indiana Evidence Rule 301 by the trial court instructing the jury that when a basic fact is proven, the jury may infer the existence of a presumed fact. Accord Flis v. Kia Motors Corp., No. 1:03CV1567-JDT-TAB, 2005 WL 1528227 (S.D. Ind. June 20, 2005) (holding the “continuing effect” language of Indiana Evidence Rule 301 authorizes a jury instruction on Indiana Code section 34-20-5-1). * * *

Viewed as a substantive matter, we find the instruction to have been balanced, i.e., fair to both sides. To be sure, it told the jury that it could find Ford not to have been negligent in its design of the 1995 Ford Explorer and that the Ford Explorer was not defective if it found that Ford had proved its compliance with FMVSS 216. This undoubtedly benefited Ford. But the instruction went on to conclude by telling the jury that it could find this proposition to be rebutted so long as the Schultzes “introduced evidence tending to show that the 1995 Ford Explorer was defective.” We believe this language was of comparable benefit to the Schultzes. So phrased, the instruction gave continuing effect to the statutory presumption in Indiana Code section 34-20-5-1 and did not unfairly prejudice the Schultzes. * * *

We find nothing in the Federal Safety Act’s saving clause that conflicts with Indiana Code section 34-20-5-1 or with its application in this case. * * * We do not find that Indiana Code section 34-20-5-1 explicitly or implicitly imposes any motor vehicle safety standard within the meaning of the Federal Safety Act and so do not find the pre-emption clause of that act implicated. Conclusion The judgment of the trial court is affirmed.

Environment - More on: Astonishing report about U.S. EPA trashing its library collection

Four Democratic representatives likely to lead key oversight committees next year have demanded that the Environmental Protection Agency halt actions to dismantle a system of regional libraries until the plans have been studied more closely.

In a letter sent last week to EPA Administrator Stephen Johnson, the members directed him to confirm in writing by Monday that the agency had ceased the ongoing process of disposing of some library records and giving others away. * * *

In August, EPA published a plan to change how it delivers library services to its staff and to the public. The plan, developed in anticipation of budget cuts, entailed closing at least three regional libraries, eliminating physical access to collections at the agency's headquarters library and blocking the public's access to professional librarians.

Ind. Decisions - One Indiana case today from the 7th Circuit

Most people who watch television
can sing it: “Like a good neighbor, State Farm is there.”
John Lummis thinks State Farm should have been, but
wasn’t, “there” for him after a fire destroyed his home
in Jamestown, Indiana. And State Farm’s refusal to
cover the loss gave birth to this litigation, which ultimately
included a jury trial and a prior ruling on a motion
for summary judgment that took a critical issue out
of the jury’s hands. Only the summary judgment matter
is before us on Lummis’s appeal. * * *

Lummis did not meet his burden of showing a genuine
issue of material fact as to whether State Farm acted
with a dishonest purpose, moral obliquity, furtive design,
or ill will when it denied his claim. Magwerks, 829 N.E.2d
at 977. This conclusion makes it unnecessary for us to
consider State Farm’s cross-appeal which challenges the
district court’s reasoning that Indiana law did not require
a clear and convincing evidence standard for a badfaith
claim.
The judgment of the district court is AFFIRMED.

We hold that the 2003 amendment to Indiana Trial Rule 4.4(A) eliminated the need for a two-step process to evaluate personal jurisdiction over a party. We also hold that actions of a subsidiary corporation do not ordinarily establish personal jurisdiction over its parent and find that principle controlling in this case.

We hold that the term “principal office” as used in subsections (4) and (10) of Trial Rule 75(A) refers to a domestic or foreign corporation’s registered office in Indiana. We also hold that subsection (10) of Trial Rule 75(A) establishes preferred venue under two circumstances: (1) when none of the preceding nine subsections are applicable or (2) when “all the defendants are nonresident individuals or nonresident organizations without a principal office in the state.”

Ind. Courts - Marion County's public defender imposes hiring freeze

Kevin Corcoran of the Indianapolis Star has a story today that begins:

The county's chief public defender has imposed an indefinite hiring freeze that could make it tough to get three new Marion County courts started in January to ease jail crowding.

David E. Cook put the freeze in effect late Friday without warning, even though he's been given millions in additional money to hire more attorneys. Cook says he needs more office space to relieve crowding in his own office.

The new courts, which would give the county up to 36 circuit and superior courts, would oversee drug and gun cases, major felonies such as rape and robbery, and lesser felony cases.

Ind. Courts - Vanderburgh County Drug Court findings

"Drug court provides second chance" is the headline to a story today by Evansville Courier & Press reporter Kate Braser. Some quotes:

About a year ago, the Indiana Judicial Center hired a research group to evaluate state adult drug courts. The group studied participants who entered Vanderburgh County Drug Court from April 2002 to June 2005. That group was compared to a group charged with crimes eligible for drug court but who never participated.

Significant findings included the following:

- The local drug court sample was rearrested 17 percent fewer times than the comparison group.

- The criminal justice cost per drug court participant was $6,152.71 versus $12,824 for the comparison group. Most of those savings came from prison and probation time.

- The average cost to the Indiana Department of Correction for each drug court participant was $5,301 versus $10,603 for the comparison group.

[Vanderburgh Superior Court Judge Wayne] Trockman is now taking those findings to legislators.

"I am trying to convince the state to divert money to treatment in drug courts," he said, explaining funding now comes from a variety of sources. "Up until now, we didn't have hard data to show this was working. We just had anecdotes."

The local program targets "hard-core addicts," according to Debbie Mowbray, director of the Vanderburgh County Day Reporting Drug Court.

[Updated 12/5/06] See this Law.comarticle today on building an inhouse e-discovery system at Pfizer. A quote:

It was June 2000, and Laura Kibbe, then an associate at Kaye Scholer's New York office, had to deal with e-discovery for the first time. Her client, Pfizer Inc., had just acquired a company whose diabetes drug had been pulled off the market and was being attacked in civil suits. Kibbe, confronting her first mass tort case, had no formal tech background. She recalls that "the plaintiffs were already into discovery, making requests for e-mail and databases. I had to figure out how to get [that to them] and what to do with it. And I didn't even know the language."

Kibbe, 38, has come a long way from barely knowing a megabyte from an overbite. Seconded to Pfizer for 2004, she worked on the mass tort case as well as other e-discovery demands. The New York-based pharmaceutical giant liked her work so much that it hired her in January 2005 as full-time senior counsel to create the company's own e-discovery system. In the last 22 months, Kibbe has put together the technology and people to form a nationally recognized e-discovery program. It includes her own handpicked discovery response team of lawyers, paralegals and tech experts.

One wintry day, Suzanne Matheny
went sledding on a snow-covered sand dune in the Indiana
Dunes National Lakeshore, a national park. Her sled
struck a rusty pipe that protruded (the record is unclear
how far) above the surface of the dune but was concealed by
snow. A year earlier a child had had a similar accident in
the same area and park rangers had removed a number of
protruding pipes but had failed to discover and remove all
of them; objects buried in the dunes may be exposed part of
the time and concealed part of the time, owing to the shifting of the sand. The pipes had not been installed by the
federal government; they were the detritus of cottages built
on the dune, and torn down, before the dune became part of
the national park.

Matheny suffered serious injuries from the collision
with the pipe and brought suit for damages against the
United States under the Federal Tort Claims Act. A magistrate
judge granted summary judgment for the government
on the ground that Indiana law would not allow
Matheny to prevail. A magistrate judge is authorized to
enter a final judgment only with the written consent of the
parties, and our circuit rule 28(a)(2)(v) requires the parties
to indicate in the jurisdictional statements in their briefs
the dates on which the parties consented. Both parties
ignored the rule, but after we directed their attention to
the omission they supplemented the record with their
written consents.

The Tort Claims Act waives the federal government’s
sovereign immunity only insofar as the defendant, were
it not the government, would be liable to the plaintiff under
the law of the state in which the conduct that is alleged to be
tortious occurred. 28 U.S.C. §§ 1346(b)(1), 2674. That was
Indiana, and we may assume without having to decide that
Matheny made out a prima facie case of negligence under
Indiana law.

In the end, the opinion affirms the lower court decision, denying plainitff's claim.

Courts - Indiana Chief Justice named to a committee of the federal Judicial Conference

A press release just issued from the Indiana Supreme Court announces:

The Hon. John G. Roberts, Jr., Chief Justice of the United States Supreme Court, has appointed Indiana Chief Justice Randall T. Shepard to the principal committee through which the U.S. Supreme Court develops changes to the Federal Rules of Civil Procedure.

Chief Justice Shepard will serve a three-year term on the 14-member Judicial Conference Advisory Committee on Civil Rules of the Judicial Conference of the United States. He will be the only state court judge. It is relatively rare that a state court judge is named to a committee of the federal Judicial Conference, the governing body for the nation’s federal courts.

The committee recommends changes and updates to the Federal Rules of Civil Procedure. Aside from governing litigation in the federal courts, these rules represent the model for rules used in most state courts, including Indiana.

“I was very gratified that Chief Justice Roberts asked me to serve, and I am very pleased that the Indiana judicial system is now represented on this important committee,” said Chief Justice Shepard.

Chief Justice Shepard’s term begins immediately.

This is the committee referenced in this ILB from Dec. 2nd on the recent changes to the federal rules relating to electronic filing, citation of not-for-publication federal opinions, and amendments to the federal civil rules re electronic discovery.

For details on the federal Judicial Conference, check here, which explains that the Judicial Conference operates through a network of committees:

Q: Who are the committee members and how are they appointed?

The Chief Justice has sole authority to make committee appointments. The Director of the Administrative Office and the assistant director, Judicial Conference Executive Secretariat collate the expressed interests of judicial officers and their recommendations of others who may be considered for appointments, and the Director forwards the suggestions to the Chief Justice. Committee chairpersons may appoint subcommittees composed of members of the committee. Appointment of subcommittees composed of non-committee members requires the approval of the Chief Justice.

As a general rule, committee appointments are for a term of three years, subject to one reappointment. Terms are staggered to minimize turnover each year. Judges who desire committee service, or wish to recommend others for assignments, may make their interests or recommendations known at any time, in writing, to the Director of the Administrative Office. A permanent file is maintained for reference during the annual appointment process.

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

In the instant case, Phyllis appeals the trial court’s Order denying her motion to seek relief under Indiana Trial Rule 60(B).3 In its recent decision of Allstate Ins. Co v. Fields, 842 N.E.2d 804, 806 (Ind. 2006), our supreme court determined the procedural timing when an appeal can be taken from a motion for relief under Indiana Trial Rule 60(B). Relying on the rules governing Indiana trial and appellate proceedings which generally restrict appellate recourse until after the entry of a final judgment or other final action by the trial court, the Allstate court held that Indiana Trial Rule 60(B) authorizes a motion for relief only from final, not interlocutory orders. Id. Additionally, the supreme court ruled that no appeal may be taken under Trial Rule 60(C) from the denial of a motion for relief from an interlocutory order granting default judgment on less than all issues. Id.

James H. Higgason, Jr., a pro se prison inmate, appeals the dismissal of his small claim action against the Indiana Department of Correction and individual prison employees (collectively, “the DOC”). Specifically, Higgason contends that Indiana Code § 34-58-2-1 is unconstitutional and that the legislative and judicial branches of this State are conspiring to quash all offender litigation. Because Higgason either has waived or does not have standing to bring these arguments on appeal, we affirm the dismissal of his small claim action.

Ind. Courts - More on: Stories about the TV/Reality Overlap

Updating this August 22, 2004 ILB entry, which quoted an Evanville Courier & Press story headlined "TV's 'reality' becomes real problem in courtroom", today the C&P has another story on the topic, this one, headed ""TV's 'reality' becomes real problem in courtroom," by Kate Braser. It begins:

While selecting a jury for a recent rape trial, Vanderburgh County Prosecutor Stan Levco asked potential jurors a question that raised eyebrows.

"Who watches shows like 'CSI' and 'Law & Order?' "

More than half the hands in the jury pool went up.

The question is one prosecutors say they almost always ask potential jurors now.

"Particularly if we don't have spectacular scientific evidence," Levco said.

The question is only the first step prosecutors take to explain to jurors that criminal cases in the real world aren't like those on popular television dramas.

In shows such as "CSI" and "Law and Order," investigators work fast and effortlessly to find stacks of scientific evidence such as fingerprints and DNA, which almost always leads to a conviction in a courtroom. The cases are open and closed in less than an hour.

Perhaps most damning of all, the standing doctrine does not even accomplish its stated ends, as Massachusetts v. EPA well illustrates. In order to determine whether the plaintiffs face a particularized and imminent injury that a favorable ruling will likely redress, the Justices must grapple with a key question the standing doctrine supposedly avoids: whether, and to what extent, the EPA's failure to regulate greenhouse gas emissions from motor vehicles contributes to global warming. The Court's energy would be better spent addressing the merits of the case directly.

The Court's rigid standing doctrine simply gets in the way of addressing the real issues. When it comes to global warming, we have had far too much of that approach already.

[Updated 12/5/06] See also this article yesterday, "Global Warming: Time For A Court Order," by Stuart Taylor Jr. of the National Journal.. A quote:

The administration's third escape hatch is its argument that even if EPA is violating the Clean Air Act, the justices are powerless to do anything about it. Rather, they must dismiss the lawsuit because no plaintiff is sufficiently harmed by EPA's inaction to confer legal standing to sue.

This is the issue on which the justices split most visibly during the oral argument. Three conservatives supported the administration's no-standing position, seeming at times almost to suggest that only proof of imminent cataclysm would persuade them. (Clarence Thomas was silent, as usual.) The four liberals disputed the no-standing position. Justice Kennedy's comments and questions were hard to read.

The liberals have the better of the argument.

The crux of EPA's no-standing position is that U.S. motor vehicle emissions are such a small fraction (6 percent) of worldwide greenhouse-gas emissions that restrictions would do Massachusetts and other plaintiffs very little good.

It follows, says EPA, that its refusal to restrict emissions does the plaintiffs very little harm.

This may be true. But U.S. motor vehicle and power-plant emissions together come to 16 percent of worldwide greenhouse-gas emissions. And Supreme Court precedents hold that a showing of some harm to plaintiffs -- even very little harm -- is enough to confer standing. Massachusetts, for example, plausibly argues that it is already losing land to rising sea levels.

"They don't have to show that it [EPA regulation] will stop global warming," as Justice David Souter stressed. "Their point is that ... it will reduce the degree of global warming and reduce the degree of coastal loss." This should be enough to establish standing.

Sunday, December 03, 2006

Ind. Decisions - "Sentence reduced in fatal child neglect case"

The Supreme Court's 4-1 opinion in Angela Duncan v. State of Indiana (see ILBentry here) was the subject of a brief story last week in the Lafayette Journal and Courier, by Joe Gerrety:

Calling her felony murder conviction a "stretch," the Indiana Supreme Court has reduced the prison sentence of a woman who gave a lethal dose of methadone to a 2-year-old.

Angela R. Duncan, 41, was convicted by a jury of felony murder in February 2005. Judge Don Daniel of Tippecanoe Circuit Court sentenced her to 52 years in prison, plus 10 years on probation.

The sentence was upheld on initial appeal to the Indiana Court of Appeals. But last week the Supreme Court found, in a 4-1 decision, that Daniel erred in imposing the aggravated sentence. The high court reduced Duncan's sentence to 45 years - the minimum term for murder.

"We cannot conclude that Duncan's conduct was more serious than the typical murder," Justice Theodore Boehm wrote in the majority opinion. "Indeed, it is only through a series of stretches that her conduct falls under the murder statute."

The deputy prosecutor who argued for the aggravated sentence said the high court's ruling could further muddle an already confused area of Indiana law.

"The analysis that led to the sentence revision will cause a great deal of confusion among practitioners," said John Meyers, chief deputy prosecutor in Tippecanoe County.

"The Indiana Supreme Court is a first-class court and the area of sentencing policy needs some clarification. This is an example of a case that will cause further confusion, in my opinion."

Ind. Courts - Noble drug court bumps starting date to Dec. 20

Noble County will start its drug court program a few weeks ahead of schedule, court officials said Friday.

The program for drug addiction rehabilitation was given a stamp of approval Thursday by the Indiana Judicial Center and the first drug court hearing in the county will be at 9 a.m. Dec. 20.

Noble Superior Court 2 Judge Michael Kramer, who will oversee the program, said the approval couldn’t have come at a better time, with focus in the county on decreasing the use of methamphetamine. Thursday was the first National Methamphetamine Awareness Day.

County officials had planned to start in January, Kramer said, but moved the start up after they found out last week they didn’t have to wait until then. The county can run the program for six months and will be re-evaluated by the judicial center to get a longer three-year approval.

Not law but interesting - Political bloggers "selling out"

Over the past few years, bloggers have won millions of fans by speaking truth to power — even the powers in their own parties — and presenting a fresh, outsider perspective. They are the pamphleteers of the 21st century, revolutionary “citizen journalists” motivated by personal idealism and an unwavering confidence that they can reform American politics.

But this year, candidates across the country found plenty of outsiders ready and willing to move inside their campaigns. Candidates hired some bloggers to blog and paid others consulting fees for Internet strategy advice or more traditional campaign tasks like opposition research.

Thanks to Wisconsin law prof Ann Althouse, who begins her entry with: "A handy chart, showing who got money, how much they got, and the embarrassing ass-kissing quotes they dished up."

Ind. Decisions - More on the Planned Parenthood records decision

This ILB entry from Dec. 1st quoted from an Indianapolis Star story of that date reporting that "On Thursday, representatives from Planned Parenthood and Carter's office signed a settlement agreement worked out after a Sept. 22 Indiana Court of Appeals ruling said a minor's right to privacy trumps the state's desire to search for evidence of abuse."

This Star interview today is titled "Five questions for Betty Cockrum." Oddly, the online version does not include the introductory paragraphs to the questions that appear in the printed edition. For instance, the online version gives no identification of who Betty Cockrum is. The intro to the printed edition identifies her as "president and chief executive officer of Planned Parenthood," gives some background to the lawsuit, and ends with:

On Thursday, [AG Carter's] office and Planned Parenthood signed a settlement agreement that essentially says everyone accepts the appeals court rulng and Carter won't ask for a review by the Indiana Supreme Court.

Ind. Gov't. - "Exodus of state staff triggers ethics rule"

Niki Kelly of the Fort Wayne Journal Gazette has an important story today on what ethics rules/laws apply to members of the Daniels administration who are now returning to the private sector. She writes:

INDIANAPOLIS – Key executive staffers and agency heads have been resigning at an increased rate in recent months, leaving Gov. Mitch Daniels’ administration and heading back to the private sector nearly two years into the governor’s tenure.

The departures include internal public policy advisers, leaders of the Bureau of Motor Vehicles and Department of Natural Resources, and the governor’s chief of staff and communications director. [ILB - Also leaving, effective Dec. 1, but not mentioned, is Matt Klein, director of IDEM enforcment, who has announced his move to the law firm of Bose McKinney.]

And state ethics laws sometimes prohibit some lobbying activities and institute other post-employment restrictions.

“I don’t see it as a big deal. The governor is very clear that he wanted to have the highest ethical standards for his administrations,” said Jason Barclay, who served as Daniels’ special counsel and policy director for public safety until July. “It’s a standard part of doing business these days both in the public and private sector.”

When Daniels took office in January 2005 he didn’t think the ethics rules were tough enough and his administration instituted several changes – with help from the legislature.

Barclay helped rewrite some of the rules, saying he reviewed post-employment restrictions in other states and drafted similar ones for Indiana.

“It’s another example of the state being woefully behind in its ethical standards when others have been abiding by them,” he said.

Daniels initially proposed a one-year prohibition on any lobbying for those who left the executive branch, but legislators watered down the law so staffers could immediately lobby the legislative branch but not the executive.[Emphasis added by ILB]

Individuals working in state government who negotiate or administer contracts, make regulatory or licensing decisions or [sic.] are also bound by additional state rules, said Laura Forest, director of the Indiana State Ethics Commission.

For the May 2006 issue of Res Gestae, I have written an in-depth column about the use of executive orders by Indiana governors. Two issues are examined:

(1) Does a governor’s executive order continue in effect when his term is over?

(2) Can the general assembly by passing a statute preempt an area – thereby invalidating an executive order on the same subject?

More from Kelly's story:

Barclay and Harry Gonso, recently departed chief of staff and senior counsel, both recognized possible limitations and sought a formal advisory opinion from the ethics commission on their new employment.

“My advice would always be to seek an advisory opinion,” Forest said. “It’s preventative, free legal advice. It’s a great service we love to do. It’s our bread and butter.”

Plus, it could avoid a range of penalties in the future, from the canceling of a contract to civil fines, reprimands and being barred from future state employment. If the activity was egregious enough, there might also be criminal sanctions.

For Barclay and Gonso – both lawyers – seeking the opinion made sense.

During Barclay’s time in the governor’s office, he worked on several ethics-related law changes. He also helped investigate and briefly ran the Indiana Criminal Justice Institute.

He took a job at Barnes & Thornburg as an associate attorney working on white-collar criminal defense work.

“I went to a large law firm that obviously does business both for and against the state, so I wanted to go before the commission and be very clear and transparent to make sure they were comfortable with that,” Barclay said.

Gonso, meanwhile, returned to his old law firm – Ice Miller – where he was a partner before leaving to help run Daniels’ staff. At Ice Miller he will be leading the firm’s life sciences practice.

He did not return several messages seeking comment.

The ethics commission ruling for both men spelled out “particular matters” that they were personally and substantially involved with that they must stay away from in their new jobs to avoid conflict of interest and revealing confidential information obtained while a state employee.

For Barclay that meant a list of things he could not go near on behalf of his new employer. This includes work on a lawsuit between the Indiana Gaming Commission and East Chicago Second Century; a legal battle on wine shipping with the Alcohol and Tobacco Commission; various investigations he assisted on out of the inspector general’s office, horse racing commission or gaming commission; a key food service contract for the Department of Correction; and several Indiana State Police contracts.

Barclay said the restrictions aren’t a concern to him because as a lawyer he is already legally required to avoid such conflicts of interest.

Gonso – one of the governor’s closest advisers and senior counsel – reported participation in only two specific matters during his two years of service: a dispute between business partners involving the French Lick casino and the award of state incentives to Cummins Engine and Honda.

The commission found Gonso must screen himself from those matters in his new law practice.

“They have recognized the governor’s promotion of ethics when they present themselves to the commission for review,” Forest said of Gonso, Barclay and others. “It sets a great example for those throughout state government.”

It may set an example, but not if no one knows about it. There is no indication on the Ethics Commission site of these individuals' applications for ethics rulings, or the rulings themselves. Apparently you can go to the Commission and ask for the opinions by name, as reporter Kelly may have done:

But departing state employees seeking more privacy can seek an informal advisory opinion from the commission, which is not open to the public.

It is unclear whether, for instance, Kyle Hupfer sought an opinion on leaving his DNR post and taking a job as general counsel for ProLiance Energy in Indianapolis. The company manages the supply of natural gas for industry, schools and hospitals, according to its Web site, and has little or nothing to do with the issues that have busied Hupfer in recent years such as canned hunting and guns in parks.

And BMV Commissioner Joel Silverman simply retired, again.

The latest Daniels’ appointee to leave is communications director Marc Lotter, who asked counsel in the governor’s office whether he should be concerned about post-employment restrictions.

“I wanted to make sure that I was doing everything that needed to be done,” he said. “But my current duties don’t require any contract negotiations or other legal work.”

Lotter is leaving Tuesday to become public relations manager for Lauth Property Group, a vast national organization that includes the French Lick casino.

Kelly ends her story by quoting Rep. Phil GiaQuinta, D-Fort Wayne: “'Sometimes there’s an appearance that folks may be doing their two years and then using that knowledge to their advantage in the private sector,' he said."

Saturday, December 02, 2006

Law - New federal rules in the news

A number of changes to the federal rules have now been finalized; several have been in the news.

Two changes have been made to the federal appellate rules. As described in the Judicial Conference of the U.S. transmittal letter to the Chief Justice:

Proposed new Rules 32.1 permits the citation in briefs of opinions, orders, or other judicial dispositions that have been designated as "not for publication," "non-precedential," or the like and supersedes limitations imposed on such citation by circuit rules. New Rule 32.1 takes no position on whether unpublished opinions should have precedential value, leaving that issues for the circuits to decide.

Howard Bashman of How Appealing has an article on these two appellate changes, titled "What Do the Federal Appellate Procedure Rule Changes Mean for You?" Access it here.

Also in the news are the amendments to the federal civil rules re electronic discovery - discovery of electronically stored information. Rules 16, 26, 33, 34, 37, 45 and Form 35 have been amended. Read the details on pp. 2-3 of the judicial conference transmittal letter cited above. USA Todaycovered this yesterday ("If there could be a case, then don't delete that e-mail: New rules protect data in the event of legal action") , as did the AP ("New Rules Compel Firms to Track E-Mails"). See also "Federal Rule Changes May Be Windfall for Tech Providers"from Law.com.

Law - More on zoning, churches, and the RLUIPA

Professor Marci Hamilton, cited recently by the NY Times as "a law professor at the Benjamin N. Cardozo School of Law at Yeshiva University in Manhattan and the author of 'God vs. The Gavel: Religion and the Rule of Law' (Cambridge University Press, 2005), which calls for closer scrutiny of some religious exemptions, especially those affecting land use and family law," has a new Findlaw.com Writ article this weekend, titled "The Circus That Is RLUIPA: How the Land-Use Law that Favors Religious Landowners Is Introducing Chaos into the Local Land Use Process."Access it here.

Goshen Mayor Allan Kauffman received a letter this week from the Elkhart County Commissioners stating they will not recommend to the Elkhart County Council that the county provide financial support to continue the Court.

“Until receiving the letter, I was cautiously optimistic that the decision would be favorable,” Kauffman said in a memo to Goshen City Council members. “It seemed to me it would be less costly and more efficient to support an existing operation than to absorb the workload in county government.”

The Goshen City Council members are expected to take a vote during their Tuesday meeting on whether to continue the court after 2007. The mayor said recently that he is not willing to approve a budget that includes a large property tax subsidy for City Court.

Friday, December 01, 2006

Ind. Decisions - 7th Circuit rules on one Indiana case today

A jury convicted John E. Parker of
being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). On appeal, Parker argues that the
district court erred in denying his motion to suppress a rifle
recovered by the police during the search of his home
because his arrest without probable cause invalidated the
search. Parker also argues that the rifle is not a “firearm” within the meaning of 18 U.S.C. § 921. We affirm both the
district court’s denial of Parker’s motion to suppress and
Parker’s conviction. * * *

Parker argued in his opening brief that the Westinfield
30/30 rifle is not a firearm within the meaning of 18 U.S.C.
§ 921. Parker appears to have abandoned any argument
in this regard in his reply brief. In any event, Parker
waived this argument at trial. Waiver is the intentional
relinquishment and abandonment of a known right, which
precludes appellate review. United States v. Thigpen, 456
F.3d 766, 769 (7th Cir. 2006) (citing United States v. Ortiz,
431 F.3d 1035, 1038 (7th Cir. 2005)). During closing
argument, Parker’s counsel expressly admitted that the
rifle met the legal definition of a firearm.4 Accordingly,
we will not review Parker’s conviction on the basis that
the rifle did not meet the definition of a firearm under
§ 921.

Ind. Decisions - Court of Appeals issues 1 today (and 1 NFP)

Sally McCarty, Commissioner of the Indiana Department of Insurance, as administrator of the Indiana Patient’s Compensation Fund (the “Fund”), appeals the trial court’s judgment in favor of Frank Walsko. We reverse.

ISSUE: Whether Walsko satisfied the statutory prerequisites to seeking damages from the Fund.

Ind. Decisions - Transfer list for week ending December 1, 2006

Here is the Indiana Supreme Court's transfer list for the week ending December 1, 2006.

Nearly three years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

List of Cases Granted Transfer and Awaiting Decision. The ILB has constructed what will be a dynamic table of cases for which the Supreme Court has granted transfer and which thus are pending disposition. Access it here (updated every Sunday).

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending December 1, 2006.

An alternate juror was dismissed during the third day of testimony in the Kevin Hampton trial for mentioning to other jurors that he heard the defendant also faces murder charges in two other cases.

The defense moved for a mistrial, which was denied.

Afternoon testimony was on hold Thursday as Vigo County Superior Court Division 3 Judge David Bolk interviewed each juror individually in judge’s chambers, with the defendant and attorneys present. After three hours of interviews under oath, jurors were returned to the jury room, except for alternate juror No. 2, who was dismissed.

During a brief hearing outside the presence of the jury, in the main courtroom, defense attorney Dan Weber moved for the proceeding to be declared a mistrial.

“It is so difficult to tell after that information reaches [the jury], whether that affects the way they think about the defendant,” Weber said. “It’s like Pandora’s Box, it can’t be placed back.

“We have two alternatives – to start over … or trudge ahead and hope that jurors are correctly predicting their own behavior,” Weber said.

For the prosecution, attorney Brad Bough stated that jurors told the judge under oath they could still fairly consider the evidence despite the rumor they heard.

Hampton does face trial in early 2007 for the slayings of Tanette Dickison and Cassie Harris, but that information is not admissible during the trial for the killing of Dianna Lehman because criminal charges are unproven accusations only.

Bough said the court should not assume jurors will believe what they heard is true.

Bolk, in denying the defense motion, said the particular juror who made the comment was known to be quite talkative and said it seemed most of the jury did not pay particular attention to what he said.

Four members of the regular jury told the judge they had heard the comment. Seven reported not having heard the comment or not understanding it. At least one juror told the judge she heard something, but did not know much about it, according to Weber.

Ind. Decisions - More on the Planned Parenthood records decision

"State ends battle for girls' health records: Attorney general settles with Planned Parenthood over seizure of medical data" is the headline to a front-page story by Diana Penner in today's Indianapolis Star. Some quotes:

On Thursday, representatives from Planned Parenthood and Carter's office signed a settlement agreement worked out after a Sept. 22 Indiana Court of Appeals ruling said a minor's right to privacy trumps the state's desire to search for evidence of abuse.

"We're very thankful that we came to this agreeable end to a disagreeable episode,'' said Betty Cockrum, president and chief executive officer of Planned Parenthood of Indiana.

Carter was not available for comment, and a spokeswoman said only that he had decided not to take the case to the Indiana Supreme Court.

The case dates to March 2005, when Planned Parenthood sued to stop investigators from Carter's Medicaid Fraud Control Unit from seizing records related to patients younger than 14.

Abortion records were not part of the case, but the state wanted records of 81 low-income girls who had sought Planned Parenthood services, which could have included counseling, pregnancy tests, screenings and birth control.

In a statement at that time, Carter said he wanted to find out whether Planned Parenthood's clinics were adhering to Indiana child-abuse reporting requirements. Under Indiana law, sex with a child younger than 14 is abuse, regardless of the age of the other person.

Planned Parenthood initially turned over the records of eight patients but balked at additional requests and went to court.

The legal question was whether a federal law on Medicaid fraud could be used to obtain medical records of sexually active children younger than 14.

In June 2005, Marion Superior Court Judge Kenneth H. Johnson ruled in Carter's favor. "The great public interest in the reporting, investigation and prosecution of child abuse trumps even the patient's interest in privileged communication with her physician,'' Johnson wrote in his decision.

The appeals court in September overturned that decision, saying that "granting (the Medicaid fraud unit's) demand for unlimited access to PPI's minor patients' medical records is neither the only, nor the most effective, nor the least intrusive means of serving those interests.''

Cockrum on Thursday pointed to strong language in a concurring statement by appeals court Judge Michael Barnes: "There is not a whit, not an iota, and not a scintilla of evidence in the record that (Planned Parenthood) has failed to report suspected abuse.''

"That pretty much says it all,'' Cockrum said. "I believe it became fairly clear and conclusive that we do our jobs.''

For background, start with this Sept. 26ILB entry and associated links, and this Sept. 22nd entry, quoting from the opinion.

Ind. Courts "Noble court records go online in pilot program"

The Fort Wayne Journal Gazette has a story today by Kara Lopp that reports:

Noble County court records stretching back to 1991 are available online today.

The county clerk’s office has joined with Crystal Lake, Ill.-based National Association of System Administrators Corp. to provide the service as part of a pilot program for the search option, Clerk Candice Myers said.

All non-confidential cases, including pending cases, will be available on the county’s Web site, www.nobleco.org, and there is no cost to users or the county, she said.

The pilot program also will include setting up at least one computer inside the Noble County Courthouse where residents can use a touch screen to look up information about upcoming court appearances. Noble County will be the first county in the state to launch this daily calendar search option, a company statement said.

Hendricks County in central Indiana has been using the system since summer, said Laurie Helgesen, a deputy clerk in Noble County who has been working on the project.

Kosciusko County is expected to launch the online case search soon, the company’s statement said.

The Noble County clerk’s office has wanted to make case information available online for several years, Helgesen said.

The office currently fields calls from attorneys and residents about court cases. Helgesen said she’s pleased those callers will be able to find cases more quickly on their own.

The ILB has taken a look this morning at the new Noble County court site. Access it here. What is available, it appears, is a docket of each case, which is certainly useful, but not any individual case records, despite the headline today. As the welcome page notes:

Here you will find case history reports on all cases that are not deemed confidential according to Administrative Rule 9, filed with our office since July of 1991. Please note that while every effort has been made to ensure the accuracy of all information on this website, the Clerk declares that the information contained herein does not represent an official record. If you need an official or certified copy of the case history, or a copy of any paperwork out of a case file you will need to contact the Clerk’s office at 260-636-2736, there will be a charge of $1 per page.

Ind. Courts - Mayor want to end Jefferson City Court

Jeffersonville Mayor Rob Waiz would like the city council to consider abolishing City Court. "It could save taxpayer dollars," he said in an interview, adding that it also would streamline city government.

The timing would be right, Waiz said, because incumbent City Court Judge Vicki Carmichael has been elected to the Clark Superior Court bench and will take office Jan. 1.

Gov. Mitch Daniels will appoint someone to complete Carmichael's term as city judge, Waiz said. But under state law, if the council enacts an ordinance this year the court could be eliminated at the end of 2007.

If the council doesn't act before the end of the year, the court can't be eliminated for four years -- at the end of the term of a judge to be elected next year.

Waiz said he hopes to bring up the issue at Monday night's City Council meeting, giving the council time to make a decision later this month. * * *

Councilman Ron Grooms said the council provides about $135,000 a year to the court for salaries for four of its seven employees; the other three are paid from probation fees. He said the council provides another $50,000 a year for other operating costs.

Another important question, Grooms said, is whether it makes sense to provide "premium" space on the first floor of City Hall for a part-time court whose functions could be taken over by other judges in the county.

Grooms, a Republican, also said partisan politics could play a role in the decision on the court, given that the judgeship has been held for many years by a Democrat and now likely will be filled by a Republican governor with someone from his party. Grooms said he would like to see the need for the court studied.

Councilman Phil McCauley, a Democrat, agreed. He said he has had some concerns about whether the part-time court, which creates considerable traffic on the days it's operating, is best located in City Hall. Its cost to the general fund also is a concern, McCauley said.

But he also said he's worried about how the roughly 2,000 cases the court handles each year -- primarily traffic and misdemeanor cases -- would affect the already-overburdened state courts in the county.

Waiz said his interest in dissolving city court is not based on partisan politics in any way -- only on what would be best for taxpayers.

Most Indiana cities that had such courts have eliminated them over the years, Waiz said.

Ind. Courts - "Appeals court has session in Jeff"

"Appeals court has session in Jeff: Panel hears arguments on legality of arrest in Marion County" is the headline to a story by Harold J. Adams in today's Louisville Courier Journal. Some quotes:

A case argued before the Indiana Court of Appeals -- "on the road" in Jeffersonville yesterday -- might define limits on when police officers can stop and search people.

A three-judge panel from the Indianapolis-based court heard arguments at Kye's at Water Tower Square.

he appeal is of a case in Marion Superior Court. But Chief Judge James Kirsch, Judge John Baker and Judge Melissa May heard arguments in Jeffersonville as part of an effort to teach more people about the court by hearing cases around the state.

Kirsch said it's important to let people see how the court operates.

The Sherman Minton Inn of Court, a group of local attorneys, was the session's host.

"People don't understand the law because they don't have contact with it," said Floyd Superior Court Judge Susan Orth, president of the group.

The case argued yesterday stems from a drug arrest made by an Indianapolis police officer in 2004. Defendant Bobby Greeno claims the officer had no reason to stop him and thus no reason to search him.

Officer Mark Spears was sent to a business called Contractors Plus after an anonymous caller told police that a man there named John Gregory was using the drug OxyContin. When Spears drove into the parking lot, Greeno was sitting outside on a roll of carpet, according to a case synopsis.

Greeno stood up and walked quickly toward the building when he saw the police car, and he ignored Spears' command to stop.

While Spears was delayed at the door by a dog, he could see Greeno, with his back to him and dressed in bib overalls and a leather jacket, "manipulating something" inside his jacket.

When the officer reached Greeno, he immediately patted him down and felt what he thought might be a knife.

He pulled the object out of Greeno's pocket, and it turned out to be a bottle containing several pills and a white substance. Greeno was charged with possession of methamphetamine and two counts of possession of a controlled substance.

Greeno, claiming the search was illegal, asked Marion Superior Court to throw out the drug find. When Judge Israel Cruz denied the motion, Greeno turned to the Court of Appeals.

Joseph Cleary, Greeno's appeals attorney, argued that Spears had no legal justification to search his client. "It has to be something more than a hunch" that something illegal is happening, Cleary said.

And even if the search had been legal, once the officer determined there was no knife, he had no right to open the pill bottle.

J.T. Whitehead, a deputy attorney general, countered that the anonymous call, along with Greeno's failure to stop, the motion of his hands inside his jacket and his "nervous comportment," provided justification for the officer to search him to ensure his own safety.

And once he found what he thought was an illegal drug, he was justified in seizing and opening the bottle, Whitehead said.

The appeals panel seemed skeptical, judging from their questions to Whitehead.

"In my practical experience I have never mistaken a pill bottle for a knife," Kirsch said. "How reasonable is that testimony?"

The appeals court frequently holds its on-the-road sessions at high schools around the state. The invited guests at yesterday's arguments included five students from New Albany High.

In a question-and-answer session after the arguments, student Alicia Reising asked, "What made you decide to become a judge?"

May answered, "I was a music major in college to start out. … When I found out I couldn't be a concert pianist, I said I have to figure out something to do."